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By a lease dated 28 April 2006, the freeholder of a block of flats in Runcorn (the Building) let Flat 10 in the building for a term of 199 years from 1 January 2006 to Mr Kumarasamy (the Headlease). The Building is accessed by a paved pathway (the paved area) which leads to the main entrance door which opens onto a front hallway (the front hallway). On 2 April 2009, Mr Kumarasamy granted Mr Edwards a subtenancy of the Flat for a term expiring on 5 October 2009 (the Subtenancy). The Subtenancy included a grant of the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives of the Building. Under the Subtenancy, Mr Edwards was under an obligation to repair the Flat, excepting items which Mr Kumarasamy was responsible to maintain. On 1 July 2010, Mr Edwards was taking rubbish from the Flat to the communal dustbins, when he tripped over an uneven paving stone on the paved area. He suffered injuries as a result and issued proceedings against Mr Kumarasamy contending that his injury was caused by Mr Kumarasamys failure to keep the paved area in repair, in breach of covenants implied into the Subtenancy by section 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985 (the 1985 Act). At first instance Deputy District Judge Gilman accepted Mr Edwards case and awarded him 3,750 in damages. Her Honour Judge May QC allowed Mr Kumarasamys appeal on two grounds: (i) the paved area was not within the ambit of the section 11 covenant; and (ii) even if it had been, Mr Kumarasamy could not have been liable as he had no notice of the disrepair. The Court of Appeal allowed Mr Edwards appeal, disagreeing with Judge May on both grounds. Mr Kumarasamy now appeals to the Supreme Court. The Supreme Court unanimously allows Mr Kumarasamys appeal. Lord Neuberger gives the leading judgment, with which the other Justices agree. Lord Carnwath also gives a short judgment. This appeal raises three questions, all of which must be answered in the affirmative for Mr Edwards to succeed on the appeal [14 16]: (1) Whether, in the light of the wording of sections 11(1)(a) and 11(1A)(a) of the 1985 Act, the paved area can be described as part of the exterior of the front hall; (2) Whether Mr Kumarasamy had an estate or interest in the front hall for the purposes of section 11(1A)(a); (3) Whether Mr Kumarasamy could be liable to Mr Edwards for the disrepair in question notwithstanding that he had had no notice of the disrepair in the paved area before Mr Edwards accident. Section 11(1) of the 1985 Act, which implies into certain leases of dwelling houses a covenant by the landlord to keep in repair the structure and exterior of the dwelling house, applies to the Subtenancy. Where the dwelling house only forms part of a building, section 11(1A) provides that the covenant has effect in relation to any part of the building in which the lessor has an estate or interest [6]. It is not possible, as a matter of ordinary language, to describe a path leading from a car park to the entrance door of a building as part of the exterior of the front hall of that building [17]. Such a wide reading would be difficult to reconcile with the wording of section 11(1A)(a), particularly the limitation to the building, and the specific extension to cover drains, gutters and external pipes, which supports a natural reading of the term exterior [18]. As to the second question, Mr Kumarasamy was granted a right of way over the front hall and, as a matter of property law, a right of way over land constitutes an interest in that land [23]. The argument that Mr Kumarasamy cannot be said to have interest in the front hall since the Subtenancy had effectively deprived Mr Kumarasamy of any practical benefit in the easement so long as it continued is rejected [24 25]. As to the third question, there is an established rule that a landlord is not liable to repair premises which are in the possession of the tenant and not of the landlord, unless and until the landlord has notice of the disrepair (the rule) [30]. Where a landlord agrees to repair the structure and exterior of a flat, the rule would apply but only to the extent that the structure is included in the demise and the tenant is accordingly in possession of that part of the structure [39 40]. The subsequent question is whether the rule can be invoked when a landlord has covenanted with a tenant to repair the structure but is not in possession of the structure, for example because he has let it to another tenant [41]. In such a case, the landlord is not normally entitled to notice in such circumstances [42 42]. The rule only applies to property in the possession of the tenant [43]. In view of this analysis, Mr Kumarasamys submission that, in every case where a tenant relies on a covenant implied by section 11, a landlord could not be liable until they had notice of the disrepair, even where the landlord is undoubtedly in possession of the property, is rejected [44 46]. The present case is concerned with the application of a landlords repairing covenant to property which is not in the possession of either the landlord or the tenant. The application of the reasoning upon which the rule is based justifies the conclusion that the landlords obligation to repair the paved area is only triggered once he has notice of any disrepair for which the tenant would seek to make him liable [49]. While it is true that Mr Kumarasamy has the right to use the common parts as against the freeholder, he has effectively lost that right for the duration of the Subtenancy to the tenant, Mr Edwards [50]. It is true that the tenant does not enjoy exclusive possession of the common parts, but he is present on them every time he comes to or leaves the flat [50] and has the best means of knowing of any want of repair in them [52].

The appellant company, De Villiers, is a surveyor. The respondent, Tiuta International, was a lender of short term business finance until it went into administration in July 2012. This appeal arises out of De Villiers application for summary judgment on part of a claim which Tiuta brought against De Villiers. As a result, the following facts have been either admitted or assumed to be correct. In April 2011 Tiuta entered into a nine month loan facility agreement (the First Facility) with a Mr Wawman in connection with a residential property development. Advances under the First Facility were to be secured by a charge over the development. The First Facility was agreed on the basis of De Villiers valuation of the development. Tiuta advanced various sums under the First Facility. In December 2011, shortly before the expiry of the First Facility, Tiuta entered into a second loan facility agreement (the Second Facility) with Mr Wawman in the sum of 3,088,252 in connection with the same development. Of that sum, 2,799,252 was to be used to discharge the outstanding indebtedness under the First Facility; the remaining 289,000 was new money, advanced to fund the development. The sums advanced under the Second Facility were secured by a further charge over the development. In January 2012 Tiuta advanced 2,799,252 to Mr Wawmans existing loan account, thereby discharging his outstanding indebtedness under the First Facility in full. Tiuta then advanced further sums as new money for the development. The advances under the Second Facility were made on the basis of De Villiers further valuation of the development in November 2012, which it revised twice in December 2012. None of the sums advanced under the Second Facility have been repaid. It is assumed for the purposes of the appeal that the valuations given for the purposes of the Second Facility were negligent, as Tiuta alleges. It is also assumed that, but for that negligence, Tiuta would not have advanced the sums under the Second Facility. Tiuta does not allege negligence in respect of the First Valuation, under which all the advanced sums were repaid in full. De Villiers application for summary judgment argued that Tiuta would have suffered some loss in any event because, but for the allegedly negligent undervaluation in respect of the Second Facility, no sums would have been advanced under the Second Facility. As a result, sums owed to Tiuta under the First Facility would have remained unpaid. The Deputy High Court Judge accepted that argument and held that Tiutas loss was limited to the new money advanced under the Second Facility. The Court of Appeal disagreed and allowed Tiutas appeal. The Supreme Court unanimously allows the appeal. Lord Sumption gives the judgment with which Lady Hale, Lord Kerr, Lord Lloyd Jones and Lord Briggs agree. The basic measure of damages is the sum which restores the claimant as closely as possible to the position that he would have been in if he had not been wronged. That principle is qualified by various rules which limit recoverable losses. Where a claimant lends money, and but for a negligent valuation would not have done so, the basic measure of damages is the difference between: (a) the position the claimant would have been in, had the defendant not been negligent and (b) the claimants actual position. This is the basic comparison discussed by Lord Nicholls in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627. The basic comparison is typically between: (a) the amount of money lent by the claimant, plus interest on that money and (b) the value of the rights acquired under the loan agreement plus the true value of the overvalued property [6]. It is assumed in this appeal that Tiuta would not have entered into the Second Facility, had De Villiers not negligently undervalued the security property. Tiuta would have still entered into the First Facility, but would not have lost the new money advanced under the Second Facility. Whereas the Deputy High Court Judge held that Tiutas losses were limited to that new money, the majority of the Court of Appeal held that the judge failed to take into account that the Second Facility was structured so as to pay off the indebtedness under the First Facility. The majority consequently held that the basic measure of Tiutas loss was: (a) the sums advanced under the Second Facility, less (b) the value of Tiutas rights under the Second Facility plus the true value of the security [7 8]. The Supreme Court disagrees with that approach. The fact that the advance under the Second Facility was used to pay off indebtedness under the First Facility does not require the Court to ignore the fact that Tiuta would have lost the sums which had been outstanding under the First Facility in any event. The basic comparison envisaged in Nykredit assumes that, but for the negligent valuation, the claimant would still have had the money which the negligent valuation caused him to lend. In this case Tiuta would not have had that money, because it had already lent it under the First Facility [9]. It is irrelevant, for the purposes of the basic comparison discussed in Nykredit, that the valuer might have contemplated being liable for the full amount of the advances under the Second Facility. The foreseeability of loss is not relevant to the basic comparison. Various legal filters may result in the valuer being liable for less than the difference calculated under the basic comparison. However, the valuer cannot be liable for more than the difference which his negligence has made simply because he contemplated that he might be liable in circumstances other than those which actually came about [10]. Tiuta argued that the use of the advance under the Second Facility to discharge the indebtedness under the First Facility was a collateral benefit to Tiuta, which need not be taken into account when calculating Tiutas loss [11]. The Supreme Court rejects that argument. Generally, where a claimant has received some benefit attributable to the events which caused his loss, it must be taken into account in assessing damages unless the benefit is collateral. Collateral benefits are generally those whose receipt arose independently of the circumstances giving rise to the loss [12]. The discharge of the existing indebtedness was not a collateral benefit. First, the refinancing part of the Second Facility was neutral in its effect, rather than beneficial: it both increased Tituas exposure and reduced its loss under the First Facility by the same amount. Secondly, the terms of the Second Facility required the indebtedness under the First Facility to be discharged, so that outcome was not collateral to the Second Facility [13]. The appeal is therefore allowed. These reasons are sensitive to these facts, including those which have been assumed for the purposes of the appeal. Subject to any submissions that may be made about the exact form of relief, the order of the Deputy High Court Judge will be restored [15].

These three appeals concern requests for extradition under European arrest warrants (EAWs). The Lithuanian Ministry of Justice issued EAWs for Mindaugas Bucnys based on convictions for housebreaking and fraud and for Marius Sakalis based on his conviction for sexual assaults. The Estonian Ministry of Justice issued an EAW for Mr Dimitri Lavrov based on a conviction for murder. EAWs are warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on surrender procedures between member states of the EU (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 (the 2003 Act) was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA) (now the National Crime Agency (NCA), the designated authority under section 2(8), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well founded in the case of either or both of the Ministries. On 12 December 2012, the Divisional Court answered the first question affirmatively and the second negatively. As to the third, it concluded that a ministry of justice would, under European law, be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98), and that, in this connection, the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant. On the evidence before it, it held that the EAWs issued by the Lithuanian Ministry in respect of Mr Bucnys and Mr Sakalis were valid, while the EAW issued by the Estonian Ministry in respect of Mr Lavrov was invalid. Mr Bucnys and Mr Sakalis now appeal, while the Estonian Ministry appeals in the case of Mr Lavrov. During the appeal further evidence was adduced about the legal position and procedures in Lithuania and Estonia. Since the hearing, the Court has been informed by those instructed by Mr Bucnys that he has [regrettably] died. The issue remains of importance, and this judgment records the Courts conclusions on it. The Supreme Court unanimously holds that the arrest warrants issued for Mr Bucnys and Mr Lavrov were valid, whereas that issued for Mr Sakalis was not. Mr Bucnyss appeal is therefore dismissed. Mr Sakaliss appeal and the Estonian Ministrys appeal in Mr Lavrovs case are allowed. Whether a justice ministry can be a judicial authority Mr Bucnys, Mr Sakalis and Mr Lavrov submitted that the relevant ministries of justice could not be a judicial authority because they were not part of the courts or judiciary as ordinarily understood. The Supreme Court, in a judgment given by Lord Mance with which all other Justices agree, holds that member states were not intended to have carte blanche to define judicial authority however they choose. The concept is embedded in European Union law. The Framework Decision is based on article 31(1)(a) of the former Treaty of European Union, which itself distinguishes between ministries and judicial authorities [23]. The concept falls under EU law to be interpreted by looking at the instruments context and intended effects [45]. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states [45]. An EAW issued by a ministry for a convicted person with a view to his or her surrender can be regarded as issued by a judicial authority if the ministry under the relevant national law issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by, the court responsible for the sentence or by some other person or body properly regarded as a judicial authority responsible for its execution [66]. If this condition is satisfied, the existence of a discretion on the part of the ministry not to issue a EAW which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this [66]. That could work only in favour of the person sought by the warrant and would be in the spirit of the Framework Decision [56]. In issuing the EAWs for the arrest of Mr Bucnys and Mr Lavrov, the respective ministries acted only at the request of and by way of endorsement of a decision made by a court responsible for the sentence. These two EAWs therefore satisfied the above test [66] and are valid. However, in issuing the EAW for Mr Sakaliss arrest, the Lithuanian ministry was acting only on a request from the prison service, and this EAW did not meet the above test and is invalid [67]. The certification of the requests Mr Bucnys, Mr Sakalis and Mr Lavrov also submitted that the terms of section 2(7) of the 2003 Act meant that a ministry of justice could be certified by SOCA only if it was responsible for issuing domestic arrest warrants rather than European ones. While that was not inconsistent with the bare language of the Act, such an interpretation would involve SOCA in onerous investigations of overseas practice and may have perverse results where, for example, the European warrants with which Part 1 is concerned were issued by a different, but more senior, judicial authority than the domestic ones [26 28]. The correct interpretation was that section 2(7) referred to the authority responsible for issuing European arrest warrants [33]. The warrants and certification were thus unobjectionable in that respect.

Mexford House is a substantial three storey block of offices in the North Shore area of Blackpool. It was purpose built in 1971 and was occupied continuously as Government offices from 1972. The property was vacant, however, by 1 April 2010, the date on which the non domestic rating list for the area of Blackpool Borough Council first came into force by virtue of section 41(2) of the Local Government Finance Act 1988 (the 1988 Act). A valuation was made for the purposes of the new rating list. The rateable value had to be determined by reference to the antecedent valuation date two years earlier. The rateable value initially entered by the valuation officer with effect from 1 April 2010 was 490,000. This reflected his view that there were other office buildings in the area of similar age and quality, occupied by public sector tenants at rent of the same order. However, the Valuation Tribunal for England reduced the rateable value of Mexford House to 1. The valuation officer appealed to the Upper Tribunal, before which the matter was dealt with by way of a full rehearing on fact and law. In cross examination, the valuation officer accepted that as at the antecedent valuation date he could not identify any person in the real would who would bid for the tenancy of Mexford House, although he noted that there was demand for other (occupied) properties that were comparable. In light of the comparable properties he gave a final assessment of the rateable value as 370,000. After the valuation officers evidence, counsel for both parties informed the Upper Tribunal that the issue between them could be decided as a matter of law upon an agreed basis of fact. No other evidence was heard. The parties lodged before the Upper Tribunal a Joint Position Paper, in which they agreed that at the time of the antecedent valuation date nobody in the real world would have been prepared to occupy the property and pay a positive price. They agreed that the rating hypothesis requires the existence of a hypothetical tenant to be assumed, but the question was whether the same hypothesis requires the rateable value to be assessed by reference to the general demand as evidenced by the occupation of other office properties with similar characteristics. It was agreed that, if the answer is yes, the correct rateable value was 370,000; if no, 1. The Upper Tribunal answered yes, so it allowed the valuation officers appeal and fixed the rateable value at 370,000. The Court of Appeal allowed Telereal Trilliums appeal and restored the Valuation Tribunal for Englands assessment of the value at 1, on the basis that there was no demand in the market for occupation of Mexford House. The valuation officer appeals to the Supreme Court, which considers the same question as the Upper Tribunal and the Court of Appeal. The Supreme Court allows the appeal by a majority of three to two. Lord Carnwath gives the judgment of the majority, with which Lord Reed and Lord Lloyd Jones agree. Lord Briggs gives a dissenting judgment, with which Lady Black agrees. Lord Carnwath notes that the court must take the Joint Position Paper as it stands. It cannot look beyond it to evidence which was not referred to by the tribunal, nor attempt to resolve issues which were left unresolved by agreement. However, in so far as there are differences as to its interpretation, the court is entitled to look at the context in which it was arrived at, and the state of the evidence as recorded by the tribunal at that time [31]. He approves of the Upper Tribunals reliance on London County Council v Church Wardens and Overseers of the Poor of the Parish of Erith in the County of Kent [1893] AC 562, from which it extracted the proposition that the true test is whether the occupation is of value, contrasted with land that was struck with sterility in any and everybodys hands [36 42]. Cases such as Hoare v National Trust [1998] RA 391 and Tomlinson v Plymouth Argyle Football Co Ltd (1960) 31 DRA 788, referred to by the Court of Appeal, do not assist the respondent as in those cases the absence of alternative tenants was due to the inherently burdensome nature of the properties, rather than the state of the market [46 48]. Lord Carnwath endorses the distinction drawn in previous Land Tribunal cases between a property which is unoccupied merely because of a surplus between supply and demand in the market, and a property which has reached the end of its economic life [55]. The Valuation Office Agencys guidance on whether a property is obsolete lists several relevant considerations, including whether the property was occupied at the antecedent valuation date, and whether there are other similar properties in the locality that are occupied [56]. This highlights the issues of fact which may become relevant in drawing the distinction in particular cases, but which, by agreement, the tribunal in the present case was not required to resolve [57]. Whether the building is occupied or unoccupied, or an actual tenant has been identified, at the relevant date is not critical. Even in a saturated market the rating hypothesis assumes a willing tenant, and by implication one who is sufficiently interested to enter negotiations to agree a rent on the statutory basis. There is no reason why, in the absence of other material evidence, the level of that rent should not be assessed by reference to general demand derived from occupation of other office properties with similar characteristics [58]. The majority therefore allows the appeal and restores the decision of the Upper Tribunal [61]. Lord Briggs, dissenting, comes to a different conclusion about the meaning and consequences of the Joint Position Paper. In the real world the existence of comparable properties at substantial rents would ordinarily have compelled an examination of whether one or more of the tenants in those properties would have been prepared to relocate to the subject property at a lower, but still more than nominal, rent [62]. It will be very rare that the evidence really does show that there is no demand at all for the subject property where there are comparable properties in the locality let at substantial rents. But if that is what the evidence shows (or what the parties have agreed), the rating hypothesis does not require a departure from that real world conclusion, merely because the subject property is in theory capable of beneficial occupation [83].

The Housing Act 1996 places a duty on local housing authorities to ensure that suitable accommodation is available for homeless persons who fulfil certain criteria. An authority may cease to be subject to that duty where an applicant refuses an offer of accommodation, but only if the authority notifies him, in writing, that it regards itself as having discharged its duty. If dissatisfied with an authoritys decision that its duty has been discharged, an applicant may appeal to the county court. But he may only do so on a point of law arising from the decision; the county court judge is not entitled to decide factual disputes as to whether or not events have happened. In this case, Birmingham City Council maintained that it had successfully discharged its duty to a number of applicants who were homeless and fulfilled the relevant criteria. The applicants disputed this, claiming that, although written notification of the kind the law requires may have been sent to them by the authority, they never actually received it. The dispute between the parties as to whether the duty had been discharged therefore turned entirely on a pure question of fact. It was therefore of a nature which a county court judge on appeal has no power to determine. Before this Court, the applicants argued that the lack of a fact finding jurisdiction for a county court on appeal put that aspect of the system in breach of Article 6(1) of the European Convention on Human Rights, which guarantees the right to a fair trial in the determination of civil rights and obligations. Two main issues arose for the courts determination: (1) whether an appeal to the county court involved the determination of a civil right for the purposes of Article 6(1); (2) if so, whether Article 6(1) required that a court hearing such an appeal must itself be able to determine issues of fact such as those raised in the present case. The Supreme Court unanimously dismissed the appeal. It held that a decision that a local housing authority takes under the Housing Act 1996 that it has discharged its duty to an applicant is not a determination of the applicants civil rights for the purposes of Article 6(1). It therefore lies outside the protection of that Article. The Court also holds that, although it is unnecessary to decide the point, the appeal procedure as a whole complies with Article 6(1) in any event. As to the first issue: Lord Hope (with whom Lady Hale and Lord Brown agreed) reasoned that in cases such as this, where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, Article 6(1) is not engaged (see para [49]). Lord Collins, whilst agreeing with Lord Hopes reasoning, placed less emphasis on the evaluative nature of the decision making process (para [58]). The mere fact that evaluative judgments are required did not take the case out of Article 6(1) (para [61]). The main reason why the decision fell outside the scope of the Article was that the statutory duty lacked precision. There was no right to any particular accommodation; the duty was simply to ensure that accommodation was available. Together with the essentially public nature of the duty, those factors meant that the duty did not give rise to an individual economic right (para [73]). As to the second issue: Although the question whether or not the letters were received was factual, it was just one among a number of interlinked questions that had to be addressed to determine whether the housing authoritys duty had been discharged. No case of the European Court of Human Rights was to the effect that an appeal from such a determination on a point of law only would constitute a breach of Article 6(1) (paras [53] [55], [79]).

The main controversy in the appeal was whether, under the test laid out in section 446X of ITEPA, the disposal of the shares had been for a price which exceeded the market value of the shares at the time of the disposal [2]. If so, then the excess (less the costs associated with completing the transaction) would be treated as employment income [2]. ITEPA 2003 had adopted the definition of market value set out in capital gains tax legislation [22]. This required consideration of what a hypothetical purchaser would pay to acquire the rights attached to the shares [49]. Two questions emerged: (1) whether Gs shares were to be valued simply as shares whose rights were set out in Grays Groups articles of association, or whether his special rights under the subscription agreement were to be taken into account as if they were set out in the articles and (2) if the latter, what effect those special rights had on the valuation exercise [25]. The first question could be divided into two parts: (a) whether the special rights should be taken as attaching to the shares as a matter of company law and (b) whether Part 7 of ITEPA, which also dealt with other financial instruments, should be taken as consistently requiring such special rights to be taken into account in the assessment of market value [26]. On (a), shareholders mutual obligations were normally set out in the companys articles of association, and Grays Groups articles said nothing about special rights attaching to Gs shares on their disposal [27]. A clause in the subscription agreement did state that the agreements provisions should prevail over the articles, but there was a previous House of Lords case which suggested that such a provision would have no effect [31]. That case had not been cited in argument before the court, and might require further legal submissions, but was not decisive owing to the conclusions reached on other points [32]. On (b), elsewhere in Part 7 of ITEPA, in relation to other financial instruments, similar special rights did affect the market value of the asset in question [33]. The principle that tax is to be charged only by clear words was less potent than it had been, but was still relevant to interpreting tax laws. There was real doubt as to whether Parliament, in Part 7 of ITEPA, had enacted a scheme which drew a coherent distinction between the treatment of rights attaching to shares and those attaching to other financial instruments [37]. The appeal was dismissed on the second question. When P purchased Grays Group Ltd, it was not concerned with the division of the sale price between the vendors, except in so far as that might have adverse tax consequences for Timber Products [38]. Whether it was right to say that Gs special rights did in some sense attach to the shares or not, those rights had no value to the hypothetical purchaser [40, 49]. They were rights personal to G [51] and were extinguished by the payment which G received [50]. The valuation did not have to take account of the actual sale of Gs shares at a special price enhanced for reasons relating to Gs special position as managing director [43].

The issue in this appeal is whether, in terms of the Scotland Act 1998 (the Scotland Act), section 72 of the Agricultural Holdings (Scotland) Act 2003 (the 2003 Act) is outside the legislative competence of the Scottish Parliament. The argument for Mr Salvesen is that it is incompatible with his rights under article 1 of the First Protocol to the European Convention on Human Rights (A1P1) relating to the protection of his property [1, 26]. For much of the post war period, agricultural tenants enjoyed effectively indefinite security of tenure under statute. The practice had grown up of granting new agricultural tenancies to limited partnerships constituted under the Limited Partnerships Act 1907 in which the landlord or his nominee was the limited partner and the tenants of the farm were the general partners. When such a limited partnership is dissolved, the remaining partners cannot carry on the business of the firm, and there ceases to be anyone who can claim to be the tenant. Therefore by dissolving the limited partnership, the limited partner effectively had a way of terminating the tenancy. Landlords were reluctant to let agricultural land on any other basis and the practice of letting to limited partnerships became widespread. But it came to be recognised that a new system was needed [8, 9]. Section 72(6) of the 2003 Act provides that if the limited partner serves a dissolution notice after 16 September 2002, the tenancy continues to have effect and the general partner becomes the tenant under the tenancy in his own right if he gives notice to the landlord as required under the subsection. Section 72 also provides that if the dissolution notice is served between 16 September 2002 and 30 June 2003, the landlord can apply to the Land Court for an order that section 72(6) does not apply. The Land Court can make such an order only if it is satisfied that (a) the dissolution notice had been served otherwise than for the purposes of depriving any general partner of any right derived from the section and (b) that it is reasonable to make the order. Section 72(10) provides that where a tenancy continues to have effect by virtue of section 72(6) and the dissolution notice was served on or after 1 July 2003, section 73 applies. Section 73 allows the landlord to terminate the tenancy at the end of its term by giving intimation of his intention to do so and then serving a notice to quit. It is this section, and the conditions for its application in section 72(10), that gives rise to the devolution issue in this case [13 16, 21]. The Agricultural Holdings (Scotland) Bill had been introduced into the Scottish Parliament on 16 September 2002. Amendments were published on 3 February 2003, which included the precursor to section 72. At that stage, the start date of the period on or after which a notice of dissolution would trigger the application of the provision was 4 February 2003. On or about 10 March 2003, an amendment to that provision was published which moved the start date back to 16 September 2002. The aim was apparently to address urgently the mass service of dissolution notices and to prevent any further steps by way of avoidance by landlords. The March 2003 amendment was retrospective. It caught dissolution notices that had been served in the period since the Bill was introduced. They included the notice served by Mr Salvesen [18 21]. Peaston Farm, near Ormiston, East Lothian was subject to a tenancy held by a limited partnership in which the general partners were the Riddells. When Mr Salvesen purchased the farm in 1998 and became the landlord, the limited partners rights were assigned to his nominee. The lease was to run until 28 November 2008 and would continue from year to year thereafter unless the limited partnership was dissolved. On 3 February 2003 the limited partner gave notice to the general partners that the limited partnership which was to run until 28 November 2008 and from year to year thereafter unless dissolved would be dissolved on 28 November 2008. On 12 December 2008 the general partners gave notice to the landlord that they intended to become the joint tenants of the farm in their own right. Mr Salvesen then applied to the Land Court for an order that section 72(6) did not apply. He said that his intention when he bought the farm was, when the tenancy came to an end, to amalgamate it with other farms he had in hand, and farm everything as one unit. The Land Court was not satisfied that the test for such an order had been made out. Mr Salvesen then appealed to the Court of Session and obtained leave to raise the devolution issue which is now before the Supreme Court. Although the underlying dispute between the parties to the lease was settled during the summer of 2012, the question whether section 72 is incompatible with the landlords A1P1 rights is a matter of general public importance [4 7]. The Supreme Court unanimously allows the appeal. It finds that Mr Salvesens A1P1 rights were violated by section 72(10) of the 2003 Act and that this provision is outside the legislative competence of the Scottish Parliament. It makes an order under the Scotland Act suspending the effect of this finding effectively until the defect is corrected [58]. The judgment is given by Lord Hope with whom all the other justices agree. A1P1 is, as was conceded by the Lord Advocate, engaged in this case [33]. A measure designed to deal with the large number of dissolution notices served on 3 February 2003 in an attempt to avoid the effects of the Bill can be said to have had a legitimate aim [40]. The effect of section 72(10) is to deny the benefit of section 73 to all cases where the tenancy was purportedly terminated between 16 September 2002 and 30 June 2003 but which continue to have effect by virtue of section 72(6). The landlords who served dissolution notices during that period are in a worse position than those who served notices from 1 July 2003. The provision is discriminatory in a respect that affects the landlords right to the enjoyment of their property. It is hard not to see it as having been designed to penalise landlords in this group retrospectively [42]. The Court is not persuaded that there was a justified difference in treatment between this group and landlords of continuing tenancies who served notices from 1 July 2003. The benefit of section 73 was regarded in their case as an appropriate counterweight to the benefit that was conferred on the general partner by section 72(6). The difference in treatment of those whose notices were served before that date has no logical justification. It is unfair and disproportionate. It is no answer to this criticism to say that there was an urgent need to meet the problem that had been identified. The legislation was intended to have an effect which was permanent and irrevocable. Section 72 does not pursue an aim that is reasonably related to the aim of the legislation as a whole. On this reading of it, Mr Salvesens rights under A1P1 would have been violated if it had still been applied to him [44]. The relevant provisions are expressed in clear and unequivocal language. Section 72 can be read only in a way that is incompatible with the A1P1 right. It is plain that the whole section needs to be looked at again, as does its relationship with section 73. But the finding of incompatibility ought not to extend any further than is necessary to deal with the facts of this case, and it is important that accrued rights which are not affected by the incompatibility should not be interfered with. The incompatibility arises from the fact that section 72(10) excludes landlords of continuing tenancies from the benefit of section 73 if their notices were served between 16 September 2002 and 30 June 2003. So the Court limits the decision about the lack of legislative competence to that subsection only [47 51]. The Court declines to make an order removing or limiting the retrospective effect of its decision on incompatibility. A long period has elapsed since the legislation came into operation, and there are competing rights and interests which will need to be considered, as well as a number of different possible scenarios. Decisions as to how the incompatibility is to be corrected, for the past as well as for the future, must be left to the Parliament guided by the Scottish Ministers following research, consultation with both sides of the industry, and the formulation of proposals for dealing with the situation that respects the parties Convention rights [54 57]. An order will be made under the Scotland Act suspending the effect of this finding for a period that will enable this process to be carried out [58].

The parties entered into a joint venture agreement on 29 January 1981. Article 8 provided that any dispute arising from the joint venture should be resolved by arbitration before three arbitrators, each of whom was required to be a respected member of the Ismaili community (the Requirement). The Ismaili community comprises Shia Imami Ismaili Muslims and is led by the Aga Khan. The issue arising on this appeal is whether the Requirement, and/or the arbitration agreement as a whole, became void when the Employment Equality (Religion or Belief) Regulations 2003 (the Regulations) came into force on 2 December 2003, as an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services. The joint venture ended in 1988. The division of the joint venture assets was largely determined by a three man panel appointed in accordance with the arbitration agreement, but some matters remained in dispute. On 31 July 2008 Mr Hashwanis solicitors wrote to Mr Jivraj asserting that a balance of over US$4.4m was due to him and giving notice of his intention to appoint Sir Anthony Colman, a retired judge of the Commercial Court, as an arbitrator. Sir Anthony was not a member of the Ismaili community. Mr Jivraj commenced proceedings for a declaration that his appointment was void as a breach of the Requirement. Mr Hashwani sought an order that Sir Anthony be appointed as sole arbitrator. The High Court (David Steel J) held that the appointment of arbitrators fell outside the scope of the Regulations as they were not employed or, if they were, that the Requirement fell within the exception permitted for genuine occupational requirements which it was proportionate to apply. Had he held that the Requirement was void, he would have held that the arbitration agreement as a whole was void. The Court of Appeal allowed Mr Hashwanis appeal in relation to the Regulations, finding that arbitrators were employed and that there had been unlawful religious discrimination. However, they concluded that the agreement should not be enforced with the Requirement severed from it and, accordingly, Sir Anthonys appointment was invalid (the severance issue). Mr Jivraj appealed to the Supreme Court in respect of the finding that the clause was void by reason of the Regulations. Mr Hashwani cross appealed on the severance issue. The Supreme Court unanimously allows the appeal on the ground that an arbitrator is not a person employed under a contract personally to do work within the meaning of the Regulations, which do not therefore apply. The majority (Lord Phillips, Lord Walker, Lord Clarke and Lord Dyson) also find that the Requirement would have fallen within the exception for genuine occupational requirements if the Regulations had applied. Lord Mance preferred not to deal with this issue as it did not arise in the light of the finding that the Regulations did not apply. The judgment of the majority is given by Lord Clarke. The High Court judge had correctly concluded that an arbitrator was not employed within the scope of the Regulations [22]. He or she fell outside the definition of a worker laid down by the case law of the European Court of Justice and was instead an independent provider of services who was not in a relationship of subordination with the person who received the services [34][40]. The dominant purpose of the contract was not the sole test for determining employment, although it might be relevant in arriving at the correct conclusion on the facts of a particular case [39]. An arbitrator was a quasi judicial adjudicator whose duty was not to act in the particular interests of either party [41]. The dominant purpose of the appointment, insofar as it was relevant, was the impartial resolution of the dispute [45]. The question of whether the Requirement was a genuine occupational requirement for the job for the purposes of the exception in regulation 7(3) of the Regulations did not therefore arise. However, whether a particular religion or belief was a legitimate and justified requirement of an occupation was an objective question for the court [59]. Arbitration was more than the application of a given national law to a dispute and a stipulation that an arbitrator be of a particular religion or belief can be relevant to the manner in which disputes are resolved [61]. In this case, the judge had correctly found that the Ismaili community had demonstrated an ethos, based on religion, for dispute resolution contained within that community [68]. The test was not one of necessity. The parties could properly regard arbitration before three Ismailis as likely to involve a procedure in which parties could have confidence and as likely to lead to conclusions of fact in which they could have particular confidence [70]. The severance issue did not therefore arise [72].

The appellant is an Egyptian national who has lived in the UK since 1994. He is subject to an asset freeze imposed on persons associated with Al Qaida under Chapter VII of the United Nations Charter. The United Nations Security Council Sanctions Committee maintains a list of persons and entities subject to the asset freeze. All members of the committee must agree to a nomination for inclusion on the list, or to de listing. The sanctions imposed on designated persons have a drastic impact on the individuals and entities concerned, and are of an indeterminate length. The United Kingdom had originally placed a hold on the appellants designation by the Sanctions Committee. On 14 September 2005 the respondent, in his capacity as a member of the Sanctions Committee, removed the United Kingdoms hold on the appellants designation. As a consequence, the appellant became subject to the asset freeze. The appellant challenged the respondents decision of 14 September 2005 to remove the hold the United Kingdom had placed on the appellants designation. The appellant challenged the respondents decision on four grounds: (i) although the respondents decision was made on untainted evidence, he was aware that the information on which other members of the Sanctions Committee were proceeding was or might have been obtained by torture, and this placed the respondent under an obligation not to support a tainted committee decision; (ii) the intended and inevitable effect of the committees decision was a serious interference with the appellants right to peaceful enjoyment of his property, which could only be achieved by a clear statutory power or common law rule, neither of which existed; (iii) the standard of proof adopted by the respondent, namely reasonable grounds to suspect that the appellant met the criteria for designation, was too low; (iv) the Wednesbury standard of review, that of reasonableness or irrationality, was wrong given the gravity of the context, and the appellant was entitled to a full merits review or at least one involving a proportionality analysis. The appellants judicial review was dismissed by the Divisional Court and the Court of Appeal. He was subsequently granted permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses Mr Youssefs appeal. Lord Carnwath gives the only judgment, with which Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agree. The court finds that the respondents 2005 decision to remove his hold on the proposal for the appellants designation by the Sanctions Committee was the exercise of prerogative powers for the conduct of foreign relations. This does not make it immune from judicial review, but the courts should proceed with caution [24]. On the first ground, torture tainted evidence, the court finds that the respondents decision must be judged by reference to his reasons, which were untainted, and not by the reasons of the committee which were published in 2010 [27]. Whilst there is no doubt as to the importance of the rules against torture and the use of torture tainted evidence, these rules do not imply a duty on states to inquire into the possible reliance on torture tainted evidence by other states, acting alone or as part of an international organisation [29]. On the second ground, absence of power, the court finds that there is statutory authority to satisfy the principle in Entick v Carrington that interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority. The requisite statutory authority is provided by EU Regulation 881, which was given legislative effect by the European Communities Act 1971. The causative role played by the prior decision of the Sanctions Committee and the respondent as a member of the committee does not affect this conclusion [34]. The appellants third ground, that the standard of proof of reasonable grounds for suspicion is too low, is rejected. The court holds that the position of a decision maker trying to assess risk in advance is very different from that of a decision maker trying to determine whether someone has actually done something wrong. Designation has a preventative purpose [50]. The Financial Action Task Force (FATF) recommendations relating to money laundering and terrorist financing refer to the objective of freezing terrorist related assets based on reasonable grounds, or a reasonable basis, to suspect or believe that the assets could be used to finance terrorist activity. A similar test of whether there is sufficient information to provide a reasonable and credible basis for the listing was proposed by the Ombudsperson in her report to the Security Council in January 2011 and reaffirmed by her in 2013 [38 9]. The appellants reliance on the criticisms of a reasonable suspicion test by this court in Ahmed v HM Treasury (no. 2) [2010] UKSC 5 is rejected on the basis that the majority judgments in Ahmed turned principally on the interpretation of the United Nations Act 1946, and that this court has the advantage of more recent evidence as to the current practice of the UN committee court [49]. The fourth ground is the standard of review. The respondent accepted in light of the approach in Kennedy v Charity Commission [2014] UKSC 20 and Pham v Secretary of State for the Home Department [2015] UKSC 19, that the facts of the case are such that the review to be conducted will be in accordance with common law principles, incorporating notions of proportionality, but submitted that this does not imply a shift to merits review [54]. The court finds that whilst there is support for the use of proportionality as a test in relation to interference with fundamental rights, in many cases the application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review, particularly in cases involving national security, where a large margin of appreciation is accorded to the executive [56 7]. The court rejects the appellants submission that a full merits review was required, finding that the UN Security Council has entrusted member states, as members of the Sanction Committee, with determining whether the designation criteria are met. It would be inconsistent with that regime for a national court to substitute its own assessment [58]. The court finds that whilst the Divisional Court was wrong to lay emphasis on an irrationality test, the applicant had failed to identify any particular aspect of the reasoning which is open to challenge even applying a proportionality test [59]. The court holds that even if there were a flaw in the respondents 2005 decision, this of itself would not entitle the appellant to a remedy. Quashing the decision would not have any substantive effect on the appellants present position, as it would not detract from the continuing effect of the Sanction Committees listing or its application in the United Kingdom through Regulation 881 [60].

These appeals concern the question whether customs officers have the power to detain goods which they reasonably suspect may be liable to forfeiture. In Eastenders, customs officers entered Eastenders premises and inspected consignments of alcoholic goods. Eastenders' employees were unable to provide documentary evidence that duty had been paid on the goods. The officers decided to detain the goods pending the outcome of further enquiries. The Commissioners subsequently stated that the goods had been detained under section 139 of the Customs and Excise Management Act 1979, which empowers customs officers to seize or detain "anything liable to forfeiture under the customs and excise Acts." [3 4] Eastenders applied for judicial review of the decision to detain those goods that were subsequently returned when the officers' enquiries proved inconclusive. Mr Justice Sales dismissed the application, holding that, where the Commissioners had reasonable grounds to suspect that goods might be liable to forfeiture, they had the power under section 139(1) to detain them for a reasonable time while they made enquiries. The Court of Appeal reversed that decision, holding that section 139(1) applied only where goods were actually liable to forfeiture. [5 7]. The Commissioners appeal to the Supreme Court. In First Stop, customs officers detained alcoholic goods at First Stop's premises, on suspicion that duty had not been paid, while enquiries were made. Written notices were provided stating that the goods had been detained "pending evidence of duty status (CEMA 1979, section 139)". Most of them were subsequently seized and the remainder returned to First Stop [8]. First Stop successfully applied for judicial review of the decision to detain the goods. Mr Justice Singh held that the detention was unlawful as the reason given for it was the need for investigation. The Court of Appeals judgment in Eastenders meant that goods could not lawfully be detained under section 139(1) for that purpose. However, the Court of Appeal disagreed with his interpretation, and decided that the effect of Eastenders was that if goods were in fact "liable to forfeiture", detention for a reasonable time was lawful under section 139(1) irrespective of the reason given for it [9 12]. Mr Justice Singh also held that the Commissioners were not protected from an order for costs by section 144(2) of the 1979 Act (which applies where officers had reasonable grounds for detaining goods) as the reason they gave for detaining the goods was unlawful. The Court of Appeal held that this was inconsistent with Eastenders. First Stop appeal against both decisions [12]. In a judgment delivered by Lord Sumption and Lord Reed, the court unanimously allows the Commissioners' appeal in Eastenders, dismisses First Stop's first appeal and allows its second appeal. The right to seize or detain property under section 139(1) is dependent on the property actually being liable to forfeiture. This turns on objectively ascertained facts; not on beliefs or suspicions, however reasonable. This is apparent when one looks at section 139(1) in the context of other provisions in the Act. For example, other powers are expressly stated to be exercisable on the basis of suspicion or belief [23], whereas the section 139(1) power is not. However, this interpretation would have troubling implications were there no other power to detain goods. It is essential in practice that customs officers should be able to secure goods where, following an examination, it is necessary to carry out further enquiries investigations that might lead to their seizure. If there were no other power of detention, then detention on the basis of suspicion would be unlawful in all cases where the suspicion turned out to be unfounded, and this would be problematic in terms of compliance with EU law and Convention standards on legal certainty [24]. In neither case however had it been argued that the power to detain could have a source other than section 139(1). But customs officers have long had a statutory power to examine goods in order to determine the duty payable or whether the goods are liable to forfeiture. Prior to the enactment in the Customs and Excise Act 1952 of the power to detain goods liable to forfeiture, the courts interpreted customs officers' statutory powers of examination as including, by necessary implication, an authority to detain goods on reasonable suspicion for such time as was reasonably necessary in order to make enquiries allowing officers to make their determination [26 35]. When enacting the 1952 Act, Parliament did not impliedly abolish that power of detention, which is not conditional upon the goods being liable to forfeiture [37; 52]. In Eastenders, the officers were entitled to detain the goods for a reasonable period in order to complete their enquiries; they were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that they had not been [49]. In First Stop, the officers' examination was not completed until the necessary enquiries had been made, and the power of examination impliedly included an ancillary power of detention for a reasonable time while these enquiries were undertaken [50 51]. Detention in both cases was therefore lawful. The section 144(2) costs protection did not apply as both judicial review applications ought to have been dismissed. The parties are invited to make submissions on costs on the basis that the court possessed its ordinary costs discretion [52 55].

In 1999, the first appellant established a business providing support for young people leaving care. In 2002, she sold a 50% interest to Mr and Mrs Costelloe. The respondent company, One Step (Support) Ltd (One Step) was incorporated as the vehicle for this transaction. In 2004, relations began to deteriorate between the first appellant and the Costelloes. In August 2006, Mrs Costelloe served a deadlock notice under the shareholders agreement, requiring the first appellant either to buy her shares or to sell her own for a certain price. The first appellant opted to sell her shares in One Step to the Costelloes for 3.15m. Both appellants agreed to be bound for three years by restrictive covenants prohibiting them from competing with One Step or from soliciting its clients. In 2004, without the Costelloes knowledge, the appellants had incorporated a new company, called Positive Living. In 2007, Positive Living began trading, in competition with One Step. In 2010, the appellants sold their shares in Positive Living for 12.8m. In 2012, the claimant company issued the present proceedings for breaches of the restrictive covenants. The trial judge, Phillips J, found that the appellants had breached the restrictive covenants and that One Step was entitled to damages to be assessed on a Wrotham Park basis (for such amount as would notionally have been agreed between the parties, acting reasonably, as the price for releasing the defendants from their obligations) or alternatively ordinary compensatory damages. Wrotham Park damages, named after the case Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798, and also known as negotiating damages1, refer to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to perform. The Court of Appeal upheld the decision of the trial judge. The appellants appealed to the Supreme Court on the question of damages. The Supreme Court allows the appeal on the basis that the courts below erred in their approach to the assessment of damages. The case should now return to the High Court for a hearing on quantum to measure the claimants actual financial loss. Lord Reed gives the main judgment, with which Lady Hale, Lord Wilson and Lord Carnwath agree. Lord Carnwath gives a concurring judgment. Lord Sumption gives a separate judgment, agreeing that the appeal should be allowed. 1 This is the term preferred by Lord Reed in his judgment at [3]. First principles Before considering negotiating damages for breach of contract, it is necessary to consider general principles relating to user damages in tort, damages in equity, and damages for breach of contract [24]. (i) User damages in tort: Damages assessed by reference to the value of the use wrongfully made of property, measured by what a reasonable person would have paid for the right of user (sometimes termed user damages), are readily awarded at common law for the invasion of property rights. Damages are available on a similar basis for the invasion of intellectual property rights [25 30, 95(1) (2)]. (ii) Damages in equity under Lord Cairns Act: Under section 2 of the Chancery Amendment Act 1858 (Lord Cairns Act), now re enacted in section 50 of the Senior Courts Act 1981, damages can be awarded in substitution for an injunction or specific performance where the court had jurisdiction to grant such a remedy when the proceedings were commenced. Damages on this basis are a monetary substitute for what is lost by the withholding of the remedy. One method of quantifying damages under this head is by reference to the economic value of the right which the court has declined to enforce. Such a valuation can be arrived at by reference to the amount which the claimant might reasonably have demanded in return for the relaxation of the obligation in question [41 47, 95(3) (5)]. (iii) Common law damages for breach of contract: Common law damages for breach of contract are intended to place the claimant in the same position as he would have been in had the contract been performed. They are therefore normally based on the difference between the effect of performance and non performance upon the claimants situation. Where the breach of a contractual obligation has caused the claimant to suffer loss, that loss should be measured or estimated as accurately and reliably as possible. The law tolerates imprecision, and there are different legal principles which can assist in estimating the claimants loss [31 40, 95(6) (9)]. Contract law damages cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, except in exceptional circumstances, following Attorney General v Blake [2001] 1 AC 268 [35, 73, 82, 95(11)]. Contract law damages are not a matter of discretion. They are claimed as of right, and are awarded or refused on the basis of legal principle [36, 81, 95(12)]. Negotiating damages for breach of contract Lord Reed reviews the Wrotham Park line of cases at [48 90], dividing the caselaw into two phases. In the initial period, beginning with Wrotham Park, awards based on a hypothetical release fee were made in the exercise of the jurisdiction under Lord Cairns Act in substitution for injunctions to prevent interferences with property rights and breaches of restrictive covenants over land [49 63]. In the later period, awards calculated in a similar way were made at common law on a wider and less certain basis [83 90]. This later phase includes Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323. Lord Reed expresses some doubts on the reasoning of Experience Hendrix, but supports the decision as it can be understood on an orthodox basis [89 90]. The two phases are divided by the case of Attorney General v Blake, in which the wider availability of hypothetical release fee awards was signalled, but the seeds of uncertainty were sown. However, although Wrotham Park was discussed in Attorney General v Blake, negotiating damages were not sought, and were not before the court [64 82]. The discussion above leads to the conclusion that negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. The imaginary negotiation is merely a tool for arriving at that value. That value may be the measure of loss where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed, as in the case of the breach of a restrictive covenant or an intellectual property agreement. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset. The defendant has taken something for nothing, for which the claimant was entitled to require payment [91 93, 95(10)]. The present case Applying these conclusions to the present case, both the trial judge and the Court of Appeal adopted a mistaken approach [96 97]. The substance of the claimants case is that it suffered financial loss in the form of lost profits and goodwill. Though difficult to quantify, this is a familiar type of loss, which can be quantified in a conventional manner. The claimants did not suffer the loss of a valuable asset created or protected by the right which was infringed. Accordingly, the case should be remitted for the judge to measure the financial loss which the claimant has actually sustained. If evidence is led in relation to a hypothetical release fee, it is for the judge to determine its relevance and weight, if any. However, such a fee is not itself the measure of the claimants loss in a case of the present kind [96 100]. The other judgments Lord Sumption would also allow the appeal. He considers that damages based on a notional release fee may be awarded in three categories of cases: (i) where the claimant has an interest, such as a property right, or the governments interest in Attorney General v Blake, which extends beyond financial reparation [110 111]; (ii) where the claimant would be entitled to the specific enforcement of his right, and the notional release fee is the price of non enforcement [112 114]; and (iii) where the notional price of a release may be relevant as an evidential technique for estimating the claimants loss, such as in cases of patent infringement [115 123]. The present case may fall into this third category [106]. Lord Sumption would modify the declaration of the judge accordingly [124]. Lord Carnwath agrees with Lord Reeds analysis and takes issue with certain aspects of Lord Sumptions analysis [133 137]. Lord Carnwath also considers the impact of the reasoning on other areas of the law concerning compensation for statutory interference with property rights [138 152], and makes some observations on the date of assessment of negotiating damages in different types of cases [153 159].

These appeals concern a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees. This excludes from protection any person with respect to whom there are serious reasons for considering thathe has been guilty of acts contrary to the purposes and principles of the United Nations. Both appellants have been refused the grant of refugee status by the respondent on this ground. Al Sirri is a citizen of Egypt who arrived in the UK in 1994. The facts relied on for the refusal of his asylum claim included his possession of and contribution to books connected with Al Qaeda and other proscribed organisations and his alleged involvement in the murder of General Masoud in Afghanistan in 2001. The issue raised by his case is whether all activities defined as terrorism by United Kingdom domestic law are for that reason acts falling within article 1F(c), or whether such activities must constitute a threat to international peace and security. DD is a citizen of Afghanistan who came to the UK in 2007. His claim for asylum was based on his fear of persecution as the brother of the leader of forces allied with the Taliban, who had fought against both the Afghan government and the UN mandated International Security Assistance Force (ISAF). In his case the question is whether armed insurrection against not only the incumbent government but also a UN mandated force supporting that government falls within article 1F(c). In both appeals the issue also arises as to what is meant by serious reasons for considering a person to be guilty of the act in question. The appellants appealed against the respondents refusal to grant asylum. On 18 March 2009 the Court of Appeal set aside the determination of the Asylum and Immigration Tribunal (AIT) in Al Sirris case and remitted it to be determined afresh omitting certain matters on which the respondent had sought to rely. DD was initially successful in his appeals but the Court of Appeal remitted his case for reconsideration by the Upper Tribunal because the AIT had failed to consider DDs individual responsibility and whether he fell within article 1F(c). Both appellants have nonetheless pursued an appeal to the Supreme Court in order to challenge the approach of the Court of Appeal to the interpretation of article 1F(c) in a number of respects. The Supreme Court unanimously dismisses both appeals. Both cases will now be remitted to the relevant tribunal for reconsideration in accordance with the orders of the Court of Appeal. In the case of Al Sirri the guidance given to that tribunal should be in line with the judgment of the Supreme Court. The judgment is given by Lady Hale and Lord Dyson, with whom the other justices agree. The general approach to article 1F(c) Article 1F(c) should be interpreted restrictively and applied with caution. There should be a high threshold defined by the gravity of the act in question, the manner in which the act is organised, its international objectives and its implications for international peace and security. There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character [16]. International dimension It is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning and member states are not free to adopt their own definitions. There is as yet no internationally agreed definition of terrorism. It was appropriately cautious therefore to adopt paragraph 17 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines which provided that article 1F(c) was only triggered in extreme circumstances by activity which attacks the very basis of the international communitys co existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category [36 38]. It could be enough if one person plotted in one country to destabilise another. The test was whether the resulting acts had the requisite serious effect upon international peace [40]. Armed insurrection against UN mandated forces DD had been engaged in fighting against ISAF in Afghanistan. ISAF was an armed force under the lead command of individual nations authorised by the UN from 2001, and was distinct from the United Nations Assistance Mission in Afghanistan (UNAMA), which was established in 2002 as a peacekeeping force. Both ISAF and UNAMA had the same objective to maintain peace and security in Afghanistan. DD argued that simple participation in an attack against UN mandated forces did not engage article 1F(c). The Supreme Court agreed that the protection for ISAF against attack was not the same as for peacekeeping forces. This was not however material to the issue under article 1F(c) which was to be judged under the same principle in paragraph 17 of the UNHCR Guidelines quoted above [66]. The fundamental aims and objectives of ISAF accorded with the purposes stated in the UN Charter and DD was seeking to frustrate that purpose [68]. Standard of proof This issue arose in acute form in Al Sirri. Al Sirri had been indicted at the Old Bailey in relation to the murder of General Masoud but the charge was dismissed on the ground that the evidence was as consistent with his innocence as it was with his guilt. Article 1F(c) required that there be serious reasons for considering that the asylum seeker had been guilty of the acts. This had an autonomous meaning, and was not the same as the criminal standard of proof beyond reasonable doubt, or any domestic standard. Serious reasons was stronger than reasonable grounds, strong or clear and credible evidence had to be present and the considered judgment of the decision maker was required. The reality was that there were unlikely to be sufficiently serious reasons for considering an applicant to be guilty unless the decision maker could be satisfied that it was more likely than not that he was. But the task of the decision maker was to apply the words of article 1F(c) in the particular case [75].

The central question in these two appeals is whether statements by the Secretary of State of her policy as regards the granting of concessions outside the immigration rules and of changes to it amount to statements as to the practice to be followed within the meaning of section 3(2) of the Immigration Act 1971 (the 1971 Act) which requires her to lay such statements before Parliament [1]. In March 1996, the Secretary of State introduced Deportation Policy 5/96 (DP5/96) relating to cases involving children with long residence in the UK [9]. On 24 February 1999, this was revised so as to introduce the general presumption that enforcement action (broadly, deportation) would not normally proceed in cases where a child, either from birth or an early age, had accumulated 7 years or more continuous residence in the UK [11]. On 9 December 2008, the Minister for Borders and Immigration announced the immediate withdrawal of DP5/96 [13]. The introduction, revision and withdrawal of DP5/96 were not laid before Parliament. The Appellants, Mr Rahman and Mr Munir are citizens of Bangladesh and Pakistan respectively. Mr Rahman entered the UK with his wife and two children in 2001. His visitors visa expired in February 2002 and his application for an extension of his leave was refused in March 2003. He remained in the UK unlawfully after that date. On 20 July 2009, he applied for indefinite leave to remain. This application was refused on 12 February 2010 on the ground that he did not satisfy the test for indefinite leave to remain under the relevant immigration rule [14]. Mr Munir entered the UK with his wife and daughter in August 2002 on a visitors visa, which expired in January 2003. They remained unlawfully after that date. They had a son together in 2005. On 27 November 2009, they applied for indefinite leave to remain. The application was refused on 18 June 2010 [16]. Mr Rahman and Mr Munir claimed judicial review of the Secretary of States refusal of their applications, seeking to rely on DP5/96 among other grounds. Mr Rahmans claim was allowed by the judge on the basis that he and his family had been resident in the UK for more than 7 years before the withdrawal of the policy and that it was irrational and unfair for the Secretary of State to withdraw DP5/96 in a way which prevented persons already in the UK who had built up at least 7 years residence prior to the withdrawal of the policy from benefiting from it [15]. Mr Munirs claim failed because neither of his children had been resident in the UK for a continuous period of 7 years before the withdrawal of DP5/96 [17]. Prior to the appeals to the Court of Appeal, the Secretary of State reconsidered the cases and decided not to enforce removal because of the length of time since the original decisions, but she decided to proceed with the appeals because of the importance of the central question referred to above [18]. The Court of Appeal allowed the Secretary of States appeal in Rahmans case and dismissed Mr Munirs appeal. Mr Munir and Mr Rahman appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeals. The source of concessionary policies is the 1971 Act and not the Royal prerogative. However, DP5/96, being an amply flexible statement that a rule may be relaxed depending on all the circumstances of the case, is not a rule within the meaning of s.3(2) of the 1971 Act and the Secretary of State did not have to lay it before Parliament. Lord Dyson gives the leading judgment with which Lord Hope, Lord Walker, Lord Clarke and Lord Wilson agree. The power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the Royal prerogative. The purpose of the 1971 Act was to replace earlier laws with a single code of legislation on immigration control. While there is no provision in the 1971 Act which in terms confers on the Secretary of State the power or imposes on her the duty to make immigration rules, it is implicit in the language of the Act that she is given such a power and made subject to such a duty under the statute itself [21] [33]. The Court therefore rejects the Secretary of States submission that, if a concessionary policy such as DP5/96 is a rule as to the practice to be followed in the administration of the 1971 Act, there is no legal obligation on the Secretary of State to lay it before Parliament [41]. If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule within the meaning of s.3(2) of the 1971 Act which should therefore be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then it does not fall within the scope of s.3(2) [45]. DP5/96 was not a statement as to the practice to be followed within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not therefore have to be laid before Parliament [45]. While the Court rejects the Secretary of States submission that the issuing of a concessionary policy (or indeed the waiving of a requirement in the rules in an individual case) is an exercise of prerogative power which for that reason does not come within the scope of s.3(2), the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the UK. The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement as to the practice to be followed within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament [46].

The question raised in these appeals is whether decisions to keep the appellant prisoners in solitary confinement (also known as segregation) for substantial periods were taken lawfully. The decisions were made under the Prison Act 1952, rule 45 of the Prison Rules 1999 and PSO 1700, a non statutory document issued by the Secretary of State. Rule 45, paragraph (1) enables the governor of the prison to arrange for the prisoner to be segregated. Paragraph (2) provides that the prisoner shall not be segregated under the rule for more than 72 hours without the authority of the Secretary of State and that authority given under this paragraph shall be for a period not exceeding 14 days. In 2010 the first appellant, Kamel Bourgass, was serving a life sentence in HMP Whitemoor. On 23 April 2010 a prisoner who had previously assaulted Bourgass was himself assaulted. Bourgass was not present. He was segregated under rule 45(1) on the orders of the challenging prisoners manager, Mr Colley. The reason given was investigation into a serious assault. He remained in segregation for seven months. His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the prisons Segregation Review Board (SRB), including Mr Colley. Authority for his segregation was accompanied by the same reason on a number of occasions, i.e. investigation of the assault. In May 2010 the police indicated that they did not regard Bourgass as a suspect in connection with the assault. After that another reason given for continued segregation was that the prison was referring Bourgass to the Close Supervision Centre (CSC). Bourgasss representatives initiated judicial review proceedings. In his response of June 2010 the Secretary of State said that Bourgass was segregated not only because of the assault but because he is considered to pose an unacceptable risk on normal location. It was alleged that he had been intimidating other prisoners to change faith. On 2 August 2010 the Secretary of State filed detailed grounds of defence to the judicial review claim, disclosing that on the morning prior to the assault, Bourgass had been seen on CCTV speaking to the perpetrator. This had not been disclosed previously. The Secretary of State also filed a witness statement repeating the suspicions about the assault and intimidation. In September 2010 the CSC decided not to accept Bourgass, stating that there was insufficient evidence to support the allegations. Segregation continued to be authorised until Bourgass was transferred to HMP Woodhill in November 2010. The second appellant, Tanvir Hussain, was serving a life sentence in HMP Frankland. On 26 April 2010 he was placed in segregation under rule 45(1) on the orders of the residential governor Mr Greener, following an incident in which another prisoner was seriously injured. He remained in segregation for six months. His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the SRB, including Mr Greener. The reasons given were the assault, police and prison investigations into it, and, later, the risk of reprisals from other prisoners. Judicial review proceedings were initiated. On 30 July 2010 the Secretary of State submitted detailed grounds of defence and a witness statement of Mr Greener, stating that Hussain was initially segregated because of the assault and the risk he posed to others. Another reason was intelligence linking Hussain with converting other prisoners in segregation to his interpretation of Islam (an allegation which the prison subsequently withdrew). In October 2010 Hussain was transferred to HMP Wakefield. The applications for judicial review focused on issues of procedural fairness. They were dismissed by the High Court. Appeals to the Court of Appeal were dismissed. The Supreme Court unanimously allows the appeals and grants a declaration in each case that the appellants segregation beyond the initial period of 72 hours was not authorised, so was unlawful. Lord Reed gives a judgment with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree. There are two issues: whether the segregation was lawfully authorised, and whether the procedure followed met the requirements of fairness under the common law and, if applicable, article 6(1) of the European Convention on Human Rights. On the first issue, the decisions taken under rule 45(2) were not taken by the Secretary of State, but by the senior prison officer or operational manager chairing the SRB, in accordance with PSO 1700. The argument was that the decision of the operational manager was the decision of the Secretary of the State, by virtue of the Carltona principle. [44 46, 58, 60, 72] Under the Carltona principle, a decision of a departmental official is constitutionally the decision of the minister himself. [48 49] However, the relationship between governors and other prison officers on the one hand, and the Secretary of State on the other, is the subject of specific legislation: this is not readily reconciled with the idea that prison governors and other officers are constitutionally indistinguishable from the Secretary of State. [55] Prison governors are the holders of an independent statutory office. In both the 1952 Act and the Rules there are provisions imposing duties specifically on the governor or prison officers and provisions that confer separate powers on the Secretary of State. It is clear that the relationship between the governor, or his officers, and the Secretary of State bears no resemblance to the relationship between a minister and his officials. [58 60, 64] Neither can perform the functions properly belonging to the other. Rule 45(2) is intended to provide a safeguard for the prisoner against excessively prolonged segregation by the local prison management. It can only operate as a safeguard if it ensures that segregation does not continue for a prolonged period without being considered by officials who are independent of the prison. It follows that the Carltona principle cannot apply to rule 45(2) so as to enable a governor to take the decision on the Secretary of States behalf. [88 89] That is sufficient to allow the appeals, but it is also appropriate to consider the second issue, procedural fairness: first, the prisoners right to make representations and second, the scope of judicial review of decisions under rule 45(2), and its compatibility with article 6(1) ECHR. [91] Common law fairness requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken to authorise continued segregation. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. In the present cases, more could and should have been said. [98, 100] As to whether the decisions to authorise continued segregation fall within article 6(1), so that the prisoner is entitled to a hearing before an independent and impartial tribunal, this depends on whether the decision involves the determination of a civil right recognised by English law. [117] A prisoner does not possess any private law right to association, or any precisely defined entitlement as a matter of public law. Article 6(1) therefore does not apply. In any event judicial review could meet the requirements of article 6(1) in this context. [122 126]

The Respondents, Barratt Homes Limited, were engaged in building a substantial development of homes and a primary school in Llanfoist, near Abergavenny in Monmouthshire. They sought to exercise the right of a property owner under s 106 Water Industry Act 1991 to connect the drains to the public sewer at a point close to the development. The appellant sewerage undertakers, Welsh Water, argued that it was entitled to insist on a connection at point some 300m further downstream, as the sewer did not have the capacity to deal with the increased load until that point. Welsh Water succeeded in the High Court but the decision was reversed on appeal and Barratt Homes made the connection at the place of its choice. Welsh Water pursued an appeal to the Supreme Court, seeking to establish that s 106 gave a sewerage undertaker the right to refuse to permit connection to the public sewer at an unsuitable point. The Supreme Court dismissed the appeal (Lady Hale dissenting). The judgment of the majority was given by Lord Phillips. The exercise of the right of a property owner to discharge into a public sewer pursuant to s 106 Water Industry Act 1991 (the 1991 Act) was an absolute right which could not be prevented on the ground that the additional discharge would create a nuisance. That was for the sewerage undertaker to deal with [paras 23 26]. The right to object to the mode of construction in s 106(4) did not extend to the point of connection [para 32]. It was significant that in nearly a century and a half since the first enactment conferring this right was passed, this was the first dispute between an owner and sewerage undertaker as to the point of connection to a public sewer to have reached the courts [para 38]. The real problem behind the dispute in this case lay in the requirement to give only 21 days notice to a sewerage undertaker before exercising the absolute right in s 106. This was manifestly unsatisfactory in relation to a development which in this case would add 25% or more to the load on the public sewer [para 41]. The only way to achieve a deferral of the right was through the planning process, in which both the sewerage undertaker and OFWAT should be consulted. More thought might need to be given to the interaction of planning and water regulation systems under modern law to ensure that the different interests were adequately protected [paras 57 58]. The 21 day limit for refusing applications to connect to the public sewer in s 106(4) was mandatory, in view of the fact that it was a criminal offence to connect a drain after such notice had been given [para 62]. Lady Hale would have allowed the appeal on the construction of s 106(4). The legislative history led her to conclude that Parliament had not intended to cut down the scope of the local authoritys power to control the place and manner of connection in the Public Health Act 1936 (the predecessor to the 1991 Act), while leaving the position in Scotland unchanged [para 73]. The words mode of construction or condition in s 106(4) should be interpreted as including the place of connection to the public sewer [para 79].

These appeals concern whether the criminal courts are prevented from trying certain former Members of Parliament on charges relating to expenses claims on the basis that the proceedings would infringe parliamentary privilege. The three Appellants, Mr Morley, Mr Chaytor and Mr Devine have been committed for trial in the Crown Court on charges of false accounting, contrary to section 17(1)(b) of the Theft Act 1968. The charges relate to claims for parliamentary expenses and are alleged to have been committed when each Appellant was a serving member of the House of Commons. The claims concerned mortgage payments, IT services, rent for accommodation, cleaning and maintenance services, and the supply of stationery. A fourth defendant, Lord Hanningfield, who is a member of the House of Lords, faces similar charges. The system for payment of Members of Parliaments allowances and expenses, as it existed at the relevant time, was created by Resolutions of the House of Commons and overseen by the Members Estimate Committee. The Fees Office received and considered claim forms and made payments in relation to claims. The claim forms which are the subject matter of all the charges were submitted to the Fees Office and contained a declaration, signed by the Member, confirming that the costs were incurred exclusively for the purpose of performing duties as a Member of Parliament. Each Appellant is facing a separate trial but all have raised a common point of law, namely that criminal proceedings cannot be brought because they would infringe parliamentary privilege. The claim to privilege has two bases. The first is Article 9 of the Bill of Rights 1689, which provides: That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament. The second is described alternatively as the exclusive cognisance or exclusive jurisdiction of Parliament and refers to the right of each House to manage its own affairs without interference from the other or from outside Parliament. It is a privilege which is wider than, and embraces, Article 9. A single preparatory hearing was held to consider the point of law. The judge ruled against the Appellants and Lord Hanningfield, and the Court of Appeal upheld that decision. The Appellants appealed to the Supreme Court. Lord Hanningfield did not appeal but was granted permission to intervene on a limited basis. On 10 November 2010 the Supreme Court ordered that each of the three appeals be dismissed, with reasons to follow. The Court now delivers those reasons. The Supreme Court unanimously dismisses the appeals. Lord Phillips (President) and Lord Rodger give the lead judgments. The Court holds that neither Article 9 nor the exclusive jurisdiction of the House of Commons poses any bar to the jurisdiction of the Crown Court to try the Appellants. The issue under Article 9 was whether making claims for parliamentary expenses fell within the phrase proceedings in Parliament. The Court held that conduct of a Member is not privileged merely because it occurs within the House of Commons. The principal matter to which Article 9 is directed is freedom of speech and debate in the Houses of Parliament and parliamentary committees. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament. On this basis, submission of expenses claims does not qualify for the protection of privilege. Scrutiny of claims by the courts will not inhibit freedom of speech or debate. The only thing that it will inhibit is the making of dishonest claims: [48]. Parliament has expressed the same conclusion and although the extent of parliamentary privilege is ultimately a matter for the courts, it is one on which the courts will pay careful regard to the views of Parliament: [16]; [59]. There are also good policy reasons for giving Article 9 a narrow ambit, namely that its protection is absolute and, where it applies, it denies redress to those injured by civil wrongdoing and prevents Members being prosecuted for conduct which is criminal, despite the fact that Parliament has only limited penal powers of its own: [61]. On the exclusive jurisdiction issue, Parliament has to a large extent relinquished any claim to have exclusive jurisdiction over the administrative business of the two Houses. Nor does Parliament assert an exclusive jurisdiction to deal with criminal conduct within the walls of Parliament, even where it relates to or interferes with proceedings in committee or the Houses. The courts and Parliament have different, overlapping, jurisdictions. Parliament can hear proceedings for contempt of Parliament and a court can try the offender for the crime. The area of activity to which the present prosecutions relate is administrative: it concerns the implementation of the expenses scheme, not the decisions of parliamentary committees in respect of the scheme itself. The expenses scheme merely provides the setting for the alleged offences and there is nothing in the allegations against the Appellants which relates to the core activities of Parliament, namely the legislative and deliberative processes, however widely construed. The House of Commons has asserted a disciplinary jurisdiction over expenses claims and has set up a review of such claims under Sir Thomas Legg. It has not, however, asserted exclusive jurisdiction. On the contrary, it has co operated with the police investigation and excluded from the claims referred to Sir Thomas Legg any that are under investigation by the police: [89] [92]; [122] [123]. For these reasons, the Court held that the prosecutions neither infringed Article 9 nor impinged upon the exclusive jurisdiction of Parliament.

On 9 November 2016 the Supreme Court gave judgment in a series of judicial review claims concerning Regulation B13 of the Housing Benefit Regulations 2006, which governed the removal of the spare room subsidy, otherwise known as the bedroom tax (R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 (Carmichael SC)). It declared that where there was a transparent medical need for an additional bedroom, which was not catered for in regulation B13 (5) and (6), there was unjustified discrimination on the ground of disability, contrary to article 14 of the European Convention on Human Rights (the Convention). Regulation B13 was amended in 2017 by Parliament to reflect the ruling, but this was not retrospective. The principal question arising in this appeal is the effect of the Supreme Courts decision in Carmichael SC on decision makers in the housing benefit system local authorities, and the First tier Tribunal (FTT) and the Upper Tribunal (UT) hearing appeals from local authority decisions in claims relating to periods before the amendment. A second issue is whether account should be taken of any discretionary housing payments (DHPs) received by the claimant during the period, if the deduction to housing benefit should not have been applied. RR lives with his severely disabled partner in a two bedroomed social housing property for which he claims housing benefit. They require separate bedrooms because of her disabilities and her need to accommodate medical equipment and supplies. In 2013 his local authority applied the discount to his housing benefit required by Regulation B13. He appealed to the FTT which found that he had suffered unjustified discrimination. To avoid this discrimination the FTT held that regulation B13(5)(a) should be read so as to apply to persons in RRs position, pursuant to s 3 of the Human Rights Act 1988 (HRA). The respondent Secretary of State appealed to the UT. The appeal was stayed while a similar appeal by Mr Carmichael proceeded to the UT and then to the Court of Appeal. The UT held that the FTTs reading of regulation B13(5)(a) was impermissible but reached the same result by holding that the decision to make a deduction from Mr Carmichaels housing benefit was a clear breach of his Convention rights, contrary to s 6(1) HRA (Carmichael UT). The Court of Appeal reversed that decision. The stay in RRs case was then lifted and the Secretary of States appeal was allowed by the UT. The UT granted RR a leapfrog certificate under s 14A Tribunals, Courts and Enforcement Act 2007, enabling him to appeal directly to the Supreme Court. The Supreme Court unanimously allows the appeal against the local authoritys decision. It orders that RRs housing benefit is to be recalculated without making the under occupancy deduction of 14%, in order to avoid a breach of RRs rights under the Convention, contrary to s 6(1) HRA. Lady Hale gives the only reasoned judgment. It is not unconstitutional for a public authority, court or tribunal to disapply a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the HRA, which is an Act of Parliament [27]. The HRA draws a clear and careful distinction between primary and subordinate legislation, both in s 6 (the requirement for public authorities to act compatibly with Convention rights) and in s 3 (the interpretative obligation) [28]. Primary legislation which cannot be read or given effect compatibly with Convention rights must still be given effect under the exception in s 6(2), but this exception does not extend to subordinate legislation, where there is no primary legislation preventing removal of the incompatibility [29]. The courts have consistently held that, where it is possible to do so, a provision of subordinate legislation which results in a breach of a Convention right must be disregarded, if it is possible to do so without affecting the statutory scheme [18 23, 30]. A decision maker must find that a claimant who is unjustifiably discriminated against is entitled to the housing benefit he would have received if the discrimination had not occurred [30]. Otherwise the local authority or court would be acting in a manner which s 6 HRA declares to be unlawful [32]. On the question of whether any DHPs received by the appellant should be deducted from the housing benefit to which he is entitled as a result of this decision, the parties were agreed as to the position. The appeal concerns the initial decision made by the local authority to make a deduction under regulation B13 to the appellants housing benefit. At that stage no question of DHPs could have arisen and the only question was entitlement to housing benefit. It is for the local authority to consider whether there are any steps which they can or wish to take to recover any DHPs [33 34]. It follows that the Supreme Court should make the same order as the UT made in Carmichael UT for the same reason as the UT gave in that case [35].

Rule 5.4C of the Civil Procedure Rules (CPR) provides that a person who is not a party to proceedings may obtain from the court records copies of a statement of case and judgment or orders made in public, and, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person. This appeal concerns the scope of Rule 5.4C, and whether the court has an inherent power to order access to documents for non parties outside this provision. Cape Intermediate Holdings Ltd (Cape), a company that was involved in the manufacture and supply of asbestos, was a defendant in a trial in the High Court to claims brought by employers insurers. Voluminous documentation was available to the court during the trial. After the trial had ended, but before judgment was delivered, the claims were settled. The Asbestos Victims Support Groups Forum UK (the Forum), which was not a party to the proceedings, applied to the court under Rule 5.4C for access to all documents used at or disclosed for the trial, including trial bundles and transcripts. The Master held that she had jurisdiction either under Rule 5.4C or at common law to grant the order sought. The Court of Appeal allowed an appeal by Cape, limiting the disclosure to the Forum to (i) statements of case held by the court pursuant to Rule 5.4C; (ii) provision by Cape of witness statements, expert reports and written submissions, and (iii) ordering that the application for further disclosure be listed before the trial judge or another High Court judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or where inspection by the Forum was necessary to meet the principle of open justice. Cape appealed to the Supreme Court, arguing that the disclosure should have been limited to the statements of case held on the court file; that the scope of any inherent jurisdiction of the court was very limited and could only extend to skeleton arguments or written submissions relied on in court; and that the Forum did not have a legitimate interest based on the public interest in open justice in the content of the documents it was seeking. The Forum cross appealed on the ground that the Court of Appeal had been wrong to limit the scope of Rule 5.4C in the way that it did. The Supreme Court unanimously dismisses the appeal and cross appeal. In a judgment of the court, the Supreme Court upholds orders (i) and (ii) of the Court of Appeal and replaces (iii) with an order that the application be listed before the trial judge (or another High Court judge if he is unavailable) to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum (at the Forums expense) in accordance with the principles laid down in the judgment. Rule 5.4C refers to the records of the court. The CPR do not define this term or provide what the records of the court are to contain. The essence of a record is something which is kept. It must therefore refer to documents kept for the courts own purposes, presently at least the claim form and the judgments or orders which resulted, but not every document lodged or held for the time being at court. However current practice in record keeping cannot determine the scope of the courts power to order access to materials to non parties, which is informed by the principle of open justice, not the practical requirements of running a justice system [19 24]. The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. They all have inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before them. The extent of any access permitted by the courts rules is not determinative (except where they contain a valid prohibition) [41]. The principal purposes of the open justice principle are two fold: to hold individual courts and judges to account, and to enable the public to understand how the justice system works and why decisions are taken. Now that much more of the argument and evidence is reduced to writing before a hearing it is difficult for non parties to follow what is going on without access to the written material, including documents [42 43]. The default position is that the public should be allowed access, not only to the parties submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing, which are not limited to those the judge has been asked to or has said that he has read [44]. It does not follow, however, that an applicant has a right for access to be granted (save to the extent that the rules grant such a right). A non party seeking access must explain why he seeks it and how granting access will advance the open justice principle. The court will carry out a fact specific balancing exercise to take account of any countervailing principles, such as the need to protect national security, privacy interests or commercial confidentiality. The practicalities and proportionality of granting the request will also be relevant, especially when proceedings are over [45 47]. In the present appeal and cross appeal, both parties submissions are therefore incorrect. The Court of Appeal did have inherent jurisdiction to make the order it did, to support the open justice principle, and it could have made a wider order if it were right to do so. The basis for the order is not Rule 5.4C [49]. There seems no realistic possibility of the judge making a more limited order than the Court of Appeal, so the orders for access already made will stand, while the balance of the application be listed before the trial judge (or another High Court judge if that is not possible) to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum, at the Forums expense, in accordance with the principles laid down in the judgment [50]. By way of postscript, the Supreme Court urges the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to and consult on the questions of principle and practice raised by this case [51].

Between 2003 and 2008, John Worboys, the driver of a black cab in London, committed sexual offences against many women. The respondents were two of his victims and both reported their assault to the police. DSD was one of Worboys first victims. She was attacked in 2003. After her assault Worboys was not identified as her assailant. In NBVs case, following an attack in 2007, Worboys was quickly arrested as a suspect but released without charge. Following a review of sexual assault cases by police in February 2008, cases were identified which involved a particular modus operandi by the perpetrator. This resulted in a police media appeal. This led to DSD and NBV being identified as his victims. Many other women were also identified as being victims of his attack. Worboys was eventually convicted of 19 counts of sexual assault, including the assault on NBV. Both women brought proceedings against the police, alleging failure to conduct effective investigations into Worboys crimes. They claimed that these failures constituted a violation of their rights under article 3 of the European Convention on Human Rights (ECHR), which provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment. The main issue was to what extent article 3 imposes a positive obligation on states effectively to investigate reported crimes perpetrated by private individuals. The High Court and the Court of Appeal held that a positive obligation to investigate did exist and that, in this case, this obligation had been breached. Compensation was awarded to the respondents. The Commissioner of Police of the Metropolis appealed to the UK Supreme Court, although it was accepted that, whatever the outcome of the appeal, recoupment of any of the compensation paid would not be sought. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the main judgment, with which Lady Hale agrees. Lord Neuberger agrees with Lord Kerr but also gives a judgment with which Lady Hale agrees. Lord Hughes and Lord Mance give separate judgments with differing reasons but agreeing with the outcome. The main area of dispute is the nature of the positive obligation imposed by article 3 of the ECHR, particularly the issue of whether the obligation relates only to systemic failures or whether it also includes operational failures [6]. Lord Kerr examines the ECHR case law supporting the existence of the positive obligation under article 3 and concludes that there is an operational duty to conduct a proper inquiry into behaviour amounting to a breach of article 3 [20, 54 58]. In order to be an effective deterrent, laws which prohibit conduct constituting a breach of article 3 must be rigorously enforced and complaints of such conduct must be properly investigated [24]. Deficiencies in investigations do not have to be part of a flawed approach of the system generally for a breach of article 3 to arise. It is clear, however, that errors must be serious in order to give rise to such a breach [29 30]. The ECtHR case law demonstrates a clear and constant line of authority to the effect that the state has a duty to conduct an effective investigation into crimes involving serious violence to the individual [44 48]. It has consistently been held that the positive obligation to investigate effectively is not solely confined to cases of ill treatment by state agents [59 62]. Lord Neuberger agrees with Lord Kerr that serious failures which are purely operational will suffice to establish a claim. ECtHR case law supports this approach. There is no basis in that case law for the suggestion that the investigatory duty should be limited to systemic, as opposed to operational, failures [85, 93]. Lord Hughes differs from this view in that he considers there is a positive obligation to ensure that there are appropriate legal structures in place but that there is no operational obligation. ECtHR case law leaves uncertainty as to the source and extent of the investigative duty [117]. The proper test for the positive obligation under article 3 to investigate reports of past violence is whether the state has a proper structure of legal and policing provision designed to punish it when it occurs and has administered that structure in good faith and with proper regard for the gravity of the behaviour under consideration. The test is not whether the investigation was careless or involved mistakes which ought not to have been made [127]. There is a breach of the positive obligation in this case as there were plain structural errors [140]. Lord Kerr considers that the fact that the police do not have a common law duty of care in tort does not extend to claims advanced under the Human Rights Act 1998 (HRA). The bases of liability are different and no assumption should be made that the policy reasons which underlie the exemption of police from common law liability apply in the same way to liability for breach of HRA obligations. The existence of a duty to investigate effectively does not depend on whether it is fair, just or reasonable to impose one [67 70]. Lord Hughes takes a different view and examines the public policy reasons why English law does not recognise a duty of care owed in tort by the police to individual citizens. Law enforcement and the investigation of alleged crime involve a complex series of judgments and discretionary decisions to re visit such matters step by step by way of litigation with a view to private compensation would inhibit the robust operation of police work. English law cannot control the operation of the ECHR, but there is a delicate balance to be struck and it is undesirable to permit detailed review of a particular criminal investigation by way of the ECHR, which is why the positive obligation should be confined to structural failings [131 132, 134]. Lord Mance considers that the distinction between operational and systemic failures has been replaced by a distinction between simple errors/isolated omissions and more serious failings, and emphasises that the positive obligation under article only relates to more serious failings [151].

In order to trade, sex shops in Westminster need a licence from Westminster City Council (Westminster) under schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, paragraph 19 of which provides that an applicant for the grant, renewal or transfer of a licenceshall pay a reasonable fee determined by the appropriate authority [1]. European Union law has placed limits upon the licence fees which can be charged. Article 13(2) of Directive 2006/123/EC, given domestic effect by regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999, provides that the authorisation procedures and formalities for applicants shall not be dissuasiveand any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures. Mr Hemming runs sex shops in the Westminster area under the name Simply Pleasure Ltd. Westminster has over past years required applicants for sex shop licences to pay with their applications a substantial sum (29,435 in 2011/12), broken down into a smaller amount (2,667 in 2011/12) relating to the processing of the application and a larger amount (26,435 in 2011/12) relating to the cost of administering and enforcing the licensing regime as a whole. The larger amount was refundable whenever an application failed [2]. Mr Hemming claims that this system was illegitimate under domestic and EU law. His primary case has been that there is no basis for requiring successful or unsuccessful applicants to meet the costs of administering and enforcing the regime. But he has also developed a secondary case, that there was no basis for requiring such costs to be paid with the applications, even on a refundable basis. The courts below agreed with Mr Hemmings primary case, holding that such costs had to be funded by an authority such as Westminster out of its general rates or other funds [4]. Westminster appeals to the Supreme Court, submitting that: (1) Under domestic law, paragraph 19 is wide enough to cover the fees it charged. (2) Under EU law, article 13(2) and regulation 18(4) are concerned only with charges made in respect of authorisation procedures and their cost. The refundable amounts are not a cost of the application but a cost of the application succeeding. (3) Alternatively, if that is wrong, then the authorisation procedures and formalities to which article 13(2) refers can be interpreted widely enough to include all aspects of the licensing scheme, including the costs of enforcing the scheme against unlicensed operators, so that the total sum required to be paid with applications can be regarded as a cost of such procedures and formalities. The Supreme Court, Lord Mance giving its unanimous judgment, allows the appeal in part but, on the critical question of whether it was lawful to require payment of the larger refundable amounts with the applications, makes a reference to the Court of Justice in Luxembourg. The Court concludes that: (1) Paragraph 19 of schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 enables a licencing authority to impose on an applicant a fee for the grant or renewal of a licence which covers the running and enforcement costs of the licensing scheme, to be payable either (a) at the time when the licence is granting; or (b) on a refundable basis, at the time when the application is lodged [7]. (2) Article 13(2) of Directive 2006/123/EC deals only with authorisation procedures and fees relating to applications for permission to access or exercise a service activity, such as operating a sex shop. It does not prevent the imposition on those who receive licences of proportionate charges to fund the cost of administering and enforcing the licensing regime [15] [17]. (3) As to the legitimacy of Westminsters system, it is helpful to distinguish between two types of scheme. Under Type A, applications for licences are made on terms that the applicant must, upon their application being granted, pay a fee to cover the cost of administering and enforcing the licensing regime. Under Type B, which represents the scheme actually adopted by Westminster, applications for licences are made on terms that the applicant must, at the time of making the application, pay a fee, refundable in the event that the application fails, to cover the cost of administering and enforcing the licensing regime [18]. (4) Type A schemes are permissible under regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999 and article 13(2) of Directive 2006/123/EC, because they permit a licensing authority to charge a successful applicant with a proportionate part of the cost of administering and enforcing the licensing regime as a whole [19]. (5) Whether article 13(2) also permits Type B schemes is more problematic, because payment is required to be made by every applicant, albeit on a potentially refundable basis, at the time when the application is made. There was no evidence that a Type B scheme could or would have a potentially dissuasive effect upon applicants but it remains unclear whether it involves in law a charge incurred from the application, contrary to article 13(2) [20] [24]. (6) A reference to the Court of Justice is therefore required on whether and when a Type B scheme is consistent with article 13(2). The parties are invited to make proposals on the wording of the question to be referred [25].

This appeal raises a question concerning the role of the Supreme Court in relation to the principles governing the award of costs in lower courts. The Appellant, Mr Gourlay, is a prisoner serving a life sentence, the minimum term of which has expired. In 2014, the Parole Board decided not to direct his release on licence and not to recommend his transfer to open prison conditions. Mr Gourlay challenged those decisions on a claim for judicial review. The Parole Board did not take part in the proceedings. The High Court decided that the Parole Boards decision not to recommend Mr Gourlay for transfer to open conditions was unlawful. Upon his success, Mr Gourlay applied for an order requiring the Parole Board to pay the costs he incurred in bringing his claim for judicial review. The High Court decided not to make such an order, following the practice described in R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2755 (Davies): that, if a court or tribunal adopts a neutral stance in proceedings in which its decision is challenged, it will not be liable for the costs of the claim, unless there are exceptional circumstances. The Court of Appeal upheld the High Courts decision not to make an award of costs. Mr Gourlay appealed to the Supreme Court. He argued that the approach described in Davies is no longer correct, that it was wrongly treated by the Court of Appeal as a binding precedent, and that it does not apply to the Parole Board in any event. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the sole judgment, with which the other Justices agree. Section 51 of the Senior Courts Act 1981 provides that the High Court and the Court of Appeal have discretion as to the award of costs, subject to the rules of court [21] [22]. The rules of court include the general rule that, if the court decides to make an order about costs, the unsuccessful party will be ordered to pay the costs of the successful party [23]. The rules of court do not, however, set out a comprehensive code [24]. It is also important that the appellate courts establish principles upon which the courts discretion as to the award of costs may, within the framework of the Senior Courts Act 1981 and the rules of court, be exercised [24]. Responsibility for the development of those principles falls principally upon the Court of Appeal [24]. Generally, such principles are matters of practice, rather than matters of law [24]. The Supreme Court will ordinarily be slow to intervene in matters of practice, including guidance given by the Court of Appeal as to the practice to be followed by lower courts in relation to the award of costs [36]. This is because the Supreme Court is generally less well placed to assess what changes in practice can appropriately be made [36]. The Supreme Court can intervene where there has been an error of law, but, bearing in mind the discretionary nature of decisions on costs, and the rarity of their raising any question of law of general public importance, appeals solely on costs are not ordinarily appropriate [36]. The counterpart of this restraint on the part of the Supreme Court is that the Court of Appeal must fulfil its primary responsibility for monitoring and controlling developments in practice [37]. In order to fulfil that responsibility, decisions on matters of practice should not be treated as binding precedents [37]. Otherwise, any departure from a previous decision could only be brought about by an appeal to the Supreme Court [37], and the Court of Appeal would be unable to respond flexibly to unusual situations, and reach a just result in each individual case [38]. Instead, it is appropriate for decisions of the Court of Appeal on matters of practice to be open to review by the Court of Appeal itself [39]. To avoid repeated arguments, potentially divergent decisions, and the attendant risk of inconsistency and incoherence, such decisions should be reviewed only where there is sufficient reason to do so: for example, where there has been a material change of circumstances [40]. In the present case, the High Court took full account of the arguments made on behalf of Mr Gourlay, and reached a decision which reflected established practice [44]. The question of whether the Parole Board falls within the scope of the practice described in Davies is itself a matter of practice: it is not determined abstractly or on the basis of definitions used for other purposes, such as the meaning given to the expression court or tribunal in the European Convention on Human Rights [44]. There is nothing in the Judges reasoning which was erroneous in law, or with which the Supreme Court would consider it appropriate to interfere as a matter of practice [44]. The Court of Appeal also did not commit any error of law [45]. In particular, its approach was not inconsistent with the rules of court [46]. The choice of a judicial or quasi judicial body to take a neutral position in court proceedings accords with principles of judicial independence and impartiality, and this cannot be what the framers of the rules of court had in mind when they referred to an unsuccessful party [46]. In addition, the Court of Appeal correctly recognised that the fact that a party is in receipt of legal aid cannot affect the principles on which the discretion to award costs is normally exercised [47] [48]. It also did not incorrectly treat itself as bound, as a matter of precedent, to follow the decision in Davies [42], [45]. The Court of Appeal could have proceeded on the basis that there was no good reason to review its recent decisions on this issue [42], [45]. Nonetheless, the Court considered Mr Gourlays submissions in full and gave detailed reasons for rejecting them on their merits [42], [45]. Insofar as the decision whether to award costs against the Parole Board turns on matters of practice, it would not be appropriate for the Supreme Court to impose on the Court of Appeal its own assessment of the merits of the parties arguments [49]. Mr Gourlays appeal must therefore be dismissed [50].

These proceedings concern three sets of claims which arise out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq. The first set (the Challenger claims) arise from a friendly fire incident involving British tanks which caused the death of Cpl Stephen Allbutt and the serious injury of Lance Cpl Daniel Twiddy and Tpr Andrew Julien. They are brought in negligence and allege failures by the Ministry of Defence (the MoD) to properly equip the tanks involved and to give soldiers adequate recognition training. The second set (the Snatch Land Rover claims) arise from the deaths of Pte Phillip Hewett (son of the claimant Susan Smith) and Pte Lee Ellis (father of the claimant Courtney Ellis and brother of the claimant Karla Ellis) by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling. The claimants all claim that the MoD breached the implied positive obligation in article 2 of the European Convention on Human Rights (the Convention) to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Land Rovers. The third (the Ellis negligence claim) is brought by Courtney Ellis in negligence and is based on various alleged failures on the part of the MoD [1 12]. The MoD argued that the Snatch Land Rover claims under article 2 of the Convention should be struck out because at the time of their deaths Pte Hewett and Pte Ellis were not within the jurisdiction of the UK for the purposes of the Convention, and because on the facts as pleaded the MoD did not owe a duty to them at the time of their deaths under article 2. It also argued that the Challenger claims and the Ellis negligence claim should all be struck out (1) on the principle of combat immunity (which operates to exclude liability for negligence in respect of the acts or omissions of those engaged in active operations against the enemy), and (2) because it would not be fair, just or reasonable to impose a duty of care on the MoD in the circumstances of those cases [13]. The High Court and Court of Appeal considered these arguments. The effect of the Court of Appeals judgment was that: (1) the Snatch Land Rover claims under article 2 of the Convention should be struck out because the deceased were outside the jurisdiction of the UK for the purposes of the Convention and there was no basis for extra territorial jurisdiction; and (2) the Challenger claims and the Ellis negligence claim should proceed to trial [15]. The following issues were before the Supreme Court. (1) In relation to the Snatch Land Rover claims, whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the UK for the purposes of the Convention. (2) If they were, whether and if so, the extent to which article 2 imposes positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. (3) In relation to the Challenger claims and the Ellis negligence claim, whether the allegations of negligence should be struck out because they fall within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances [16]. The Court unanimously holds that, in relation to the Snatch Land Rover claims, Pte Hewett and Pte Ellis were within the UKs jurisdiction for the purposes of the Convention at the time of their deaths. By a majority (Lords Mance, Wilson and Carnwath dissenting), the Court holds that: (i) the Snatch Land Rover claims should not be struck out on the ground that the claims are not within the scope of article 2 of the Convention; and (ii) the Challenger claims and Ellis negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoDs duty of care to those cases [101]. The effect of the Courts decision is that all three sets of claims may proceed to trial. Issue 1: Convention jurisdiction: In its judgment of July 2011 in the Al Skeini case, the European Court of Human Rights decided that six Iraqi civilians who had died as a result of the actions of British armed forces in Iraq were within the UKs jurisdiction for the purposes of the Convention. The judgment does not answer issue 1 directly, but elements can be extracted from it which point clearly to the conclusion that the Court reaches in this case. It formulates a relatively general principle that extra territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. It also indicated that Convention rights can be divided and tailored to the particular circumstances of the extra territorial act in question, as opposed to being an indivisible package. A states extra territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them as a result of the authority and control that the state has over its own armed forces. They are all brought within the states jurisdiction by the application of the same general principle [42 52]. Issue 2: Snatch Land Rover claims under article 2 of the Convention: In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be protected by article 2. Policy decisions made at a high level of command and things done on the battlefield will fall outside the scope of article 2. But whether claims which are between these two categories are within the scope of article 2 will require the exercise of judgment in the light of the facts of each case [76]. The present claims provide only brief outlines of the claimants cases and they pre date developments in relevant case law on article 2. The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Courts guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach [78 81]. Issue 3: Challenger claims and Ellis negligence claim: The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The Ellis negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine. It would be premature for these claims to be struck out and the issue should be open to further argument in the light of the evidence [89 96]. The circumstances in which active operations are undertaken by the UKs armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence [98 100]. Minority judgments: Lord Mance (with whom Lord Wilson agrees) would have struck out all three sets of claims in their entirety, essentially because they are not suitable for resolution by a court [125 137, 146, 150 152]. For the same reasons, Lord Carnwath would have struck out the Challenger claims. However, he considered that the Snatch Land Rover claims were not necessarily excluded, because major combat operations had ceased by the time of the relevant incidents [156, 186 188].

Oracle America Inc, formerly known as Sun Microsystems, [Sun] are the manufacturers of computer systems, workstations and related goods. Sun is the proprietor of trade marks registered for use in connection with computer hardware [5]. M Tech Data Limited, is a supplier of computer hardware [5]. Articles 5 and 7 of Directive 89/104/EC confer upon a trade mark proprietor the exclusive right to control the first marketing in the European Economic Area [EEA] of goods bearing his trade mark, even if the goods are genuine and have previously been put on the market by him or with his consent outside the EEA [4]. This means that third parties cannot import or sell a product for the first time in the EEA without the trade mark proprietors consent. Sun has the right to first market its hardware in the EEA. In 2009, a trap order was placed by a UK purchaser called KSS Associates for 64 Sun disk drives [5]. A trap order is used in litigation to gather evidence as to what a potential defendant supplies in response to a request for a trade mark proprietors products. M Tech supplied 64 Sun disk drives sourced from a US broker, which had previously been sold in China, Chile and the USA. Sun had never consented to these goods being put on the market in the EEA. Consequently, M Tech infringed Suns trade marks contrary to Article 5.1(a) of the Directive [5]. Sun sought summary judgment for damages for the infringement and an injunction restraining further infringements [6]. In its defence, M Tech alleged that Sun had sought to secure the secondary market for its hardware, worth US$ 1.07 billion, for itself and its authorised dealers by declining to supply information on whether any particular equipment was first put on the EEA market by or with Suns consent [9]. This had a chilling effect on independent resellers, including M Tech, as a result of Suns aggressive enforcement of its trade mark rights and withholding of the requisite information, which was not otherwise available and could not be inferred from circumstances [9]. In fact, the disks had been imported and supplied by M Tech because of internal procedure failures and not due to any alleged policy by Sun to withhold the requisite information [10]. M Techs defence was that Suns trade marks are not enforceable at all because (i) the object and effect of enforcement would be to partition the EEA market contrary to the free movement of goods within the EU enshrined in Articles 34 to 36 of the Treaty on the Functioning of the European Union; (ii) the exercise of Suns trade marks is connected with its distribution agreements that contained restrictive provisions inconsistent with Article 101 and (iii) enforcement of Suns trade marks would constitute an abuse of rights under EU law [6]. Kitchin J granted summary judgment, ordering an inquiry into damages, and an injunction that prevented M Tech marketing goods if Sun has confirmed that those goods have not previously been put on the EEA market by Sun or with Suns consent [7, 10]. The Court of Appeal allowed M Techs appeal and set aside the order [7]. Sun appeals to the Supreme Court, inviting the court to make a reference to the Court of Justice of the European Union [CJEU'] [7]. The issue is whether a person who has imported and sold goods in the EEA without the consent of the trade mark proprietor is entitled to defend an action for infringement on the ground that the proprietor of the trade mark is engaged in conduct calculated to obstruct the free movement of goods or distort competition in the EEA market [1]. If this were an arguable defence in EU law, a reference to the CJEU would be necessary [7]. The Supreme Court unanimously allows the appeal and restores the order of Kitchin J. The Supreme Court declines to make a reference to the CJEU [36]. Lord Sumption delivers the judgment of the Court. The fundamental question is whether, as a matter of construction of Articles 34 to 36 of the EU Treaty, there is an implied limitation on the application of Article 5 of the Directive to preclude any exercise of trade mark rights that would have the object or effect of partitioning the EEA internal market [11]. Such a limitation would effectively suspend Suns trade mark rights as against the entire EEA market [11]. The scheme of Articles 5 and 7 of the Directive embodies both the primary provisions of the Treaty governing free movement of goods and the limited exception in Article 36 of the Treaty for the protection of industrial and commercial property [14]. Reconciliation of the right under Article 5 to prevent the use by others of his own or identical trade mark for the registered class of goods with the Treaty is achieved by Article 7.1, as the right is exhausted as soon as goods are put on the EEA market by or with the consent of the trade mark proprietor [15]. This is subject to Article 7.2, which permits a proprietor to control the marketing of his goods within the EEA market for legitimate reasons, which naturally do no include restricting trade between member states [16]. The principle of the free movement of goods is incapable of restricting the right of a trade mark proprietor to prevent the first marketing within the EEA of goods imported from outside the EEA, per EMI Records Ltd v CBS United Kingdom Ltd 9 (Case 51/75) [1976] ECR 811 [18 20]. The Directive is a definitive statement of the harmonised law concerning the rights of trade mark proprietors that confers on them a right to control the first marketing of their goods in the EEA, save where that right has been unequivocally renounced [20]. The right affects only the entry of goods onto and not the movement of goods within the EEA market [25]. Under Article 7.2, when goods have been put on the EEA market, the free movement of goods may be engaged and control of the marketing can only be exercised for legitimate reasons [21]. Where there are no such legitimate reasons, the right to control the marketing does not exist at all [22]. This reasoning cannot be applied to the right to control the first marking of goods in the EEA as that right is in every relevant respect unqualified [22]. National law may place the burden of proving the consent of the trade mark proprietor to put goods on the EEA market on an alleged infringer who asserts it, unless the effect would be to enable the partitioning of national markets, in which case the burden lies with the proprietor [23]. This rule is of no application in a case where it is admitted or clear that the goods were imported into the EEA without the proprietors consent [23]. It is clear that the unlawful conduct alleged by M Tech does not amount to a defence, even if proved [24]. On the agreed facts, the disk drives were never marketed in the EEA until they were imported by M Tech without Suns consent. The only right that Sun is seeking to enforce is the right to control the first marketing of goods in the EEA and the exercise of these rights affects only the entry of goods onto the EEA market and thus does not engage the principle of the free movement of goods [25]. The control of marketing of goods in circulation within the EEA under Article 7.2 is a different and irrelevant situation [25]. Sun cannot be prevented from enforcing its right to control first marketing, which is entirely lawful and consistent with the principle of the free movement of goods, simply because it is alleged that Sun proposes to withhold information about the provenance of its goods, which is unlawful and inconsistent with that principle [26]. The case law on Article 7.2 only prevents a trade mark proprietor claiming a right to oppose further commercialisation if the exercise of that right itself would unjustifiably impede the free movement of goods. It does not restrain any exercise that does not [27]. The limitation contended for would have the effect of preventing Sun enforcing its trade mark rights against anyone, which is unnecessary to vindicate the Treaty and contrary to the object and terms of the Directive [28]. There is no relevant connection between the alleged policy of withholding information about the provenance of goods and the prevention, restriction or distortion of competition, contrary to Article 101 of the Treaty, by means of distribution agreements with a network of authorised Sun dealers. The policy had no effect on the choices made by the dealers and neither trade marks nor the right to enforce them can be characterised as the subject, means or result of an agreement or concerted practice [32]. The exercise of Suns rights was not an abuse of rights in EU law [35]. A reference to the CJEU is not necessary as the legislative and legal principles that made M Techs case impossible are entirely clear [36].

This appeal raises an important question about the application of copyright law to the technical processes involved in viewing copyright material on the internet. Where a web page is viewed by an end user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and in the internet cache on the hard disk of the computer. The end users object is to view the material. He does not make a copy unless he downloads or prints the image. The copies temporarily retained on the screen or in the cache are merely an incidental consequence of using a computer to view the material. Temporary copies of copyright material on a computer are dealt with by section 28A of the Copy, Designs and Patents Act 1988. S28A gives effect to Directive 2001/29/EC (the Directive). The Directive gives copyright owners various rights. Article 5.1 qualifies rights in relation to temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technical process whose sole purpose is to enable: (a) the transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance The appellant is a professional association of public relations professionals who monitor news coverage for clients, using on line monitoring and search services. The Meltwater group of companies provides members of the association with automated software programmes to create a daily index of words appearing on newspaper websites. Meltwaters customers supply them with search terms, and Meltwater produces a monitoring report listing the results. Meltwater sends the monitoring report to the customer by email, but the customer can also access it through Meltwaters website. The question in this appeal is whether Meltwaters customers need a licence to receive its service if a monitoring report is made available only on Meltwaters website. Proudman J held that the end user needed a licence and the Court of Appeal agreed, largely on the ground that making copies, however temporary, in the end users computer while browsing was not part of the technological process but generated by the users voluntary decision to access the web page. Before making an order, the Court refers the question of whether the requirements of article 5.1 of the Directive are satisfied to the CJEU for a preliminary ruling. Lord Sumption gives the judgment of the Court. Lord Sumption reviewed and summarised the effects of a series of CJEU decisions [26]. He rejects the idea that article 5.1 does not apply to temporary copies generated by an end user of the internet. Recital 33 to the Directive makes clear it was intended to include acts which enable browsing as well as acts of catching to take place. Browsing by its very nature is an end user function. These acts are acts of temporary reproduction which enable browsing and are the making of temporary copies in the end users cache and screen. The exception is wider than the process of transmission in a network between third parties by an intermediary. Article 5.1(b) also extends it to lawful use. This covers use of work subject to copyright, whether or not authorised by the copyright owner, provided it is not restricted by legislation. This necessarily includes use of the work by an end user browsing the internet [27]. Once it is accepted that the purpose of article 5.1 is to authorise the making of copies to enable the end user to view copyright material on the internet, the various conditions laid down by it must be constructed consistently with that purpose, and apply to ordinary technical processes associated with internet browsing [28]. As to the other conditions of article 5.1, copies in the cache and on screen are an integral part of a technological process as they are basic features of modern computers. The technical process required to browse the internet could not function correctly and efficiently with the acts of reproduction concerned [29]. Copies are stored automatically by browsing and deleted automatically by a lapse of time coupled with continuing browser use, rather than being dependent on discretionary human intervention. The technological processes are those necessarily associated with browsing including retention of material in the cache for no longer than the ordinary processes associated with internet use continue. The restriction to temporary and transient is designed to prevent downloading or copying which is permanent until the user chooses to delete the material. The copying has no independent economic value unless Meltwaters customers download or print the material. The sole economic value is from accessing information on Meltwaters website which is derived from merely reading it on screen [31]. The above conclusions would not result in large scale piracy. It has never been an infringement of EU or English law to view or read an infringing article in physical form. Making mere viewing, rather than downloading or printing, the material an infringement could make infringers of millions of ordinary internet users across the EU. Nothing in article 5.1 stops Meltwater needing a licence to upload copyright material on their website. The copyright owner still has remedies against pirates including the remedies provided in the Directive itself. Given the appeals transnational dimension and potential implications for internet users across the EU, the Court, while expressing its own view of the matter, proposes to refer the matter to the CJEU for a preliminary ruling. The question which it will refer is (in substance) whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process are satisfied, having regard in particular to the fact that copies may remain in the cache after the browsing session that generated them has ended until overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the end user [38].

Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].

A special rule has been developed for cases brought by persons who contract mesothelioma after being wrongly exposed to asbestos, known as the Fairchild exception after the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. This provides that defendants whose breaches of their duty of care materially increase the risk of mesothelioma are jointly and severally liable for the damage suffered if mesothelioma does in fact develop. The rule relaxes the usual requirement that a claimant must show that it is more likely than not that the harm he has suffered has been caused by the defendants breach, in order to reflect the fact that medical science cannot presently determine which asbestos fibre or fibres has caused the mesothelioma to develop, often decades later. The issue in these two appeals was whether this special rule applies in cases where only one defendant is proved to have exposed the victims to asbestos, but where the victims were also at risk of developing the disease from environmental exposure to asbestos in the general atmosphere. Mrs Karen Sienkiewicz is the daughter and administratrix of the estate of the late Mrs Enid Costello, who died of mesothelioma on 21 January 2006 at the age of 74. Mrs Costello had worked in an office at factory premises manufacturing steel drums for employers who were found to have wrongly exposed her to asbestos, although the level of that exposure was very light. This was calculated by the trial judge to have increased her total level of exposure, over the general environmental exposure, by 18%. Mr Barre Willmore is the husband and administrator of the estate of the late Dianne Willmore who died of mesothelioma on 15 October 2009 aged 49. She was found to have been exposed to asbestos at her secondary school. In Mrs Costellos case, the judge held that the Fairchild exception did not apply and that she had failed to establish that her occupational exposure to asbestos was the likely cause of her disease. This decision was reversed by the Court of Appeal, which entered judgment on liability with damages to be assessed. The judge in Mrs Willmores case applied the Fairchild exception and awarded her damages of 240,000. The Court of Appeal upheld his decision. The defendants in each case appealed to the Supreme Court, arguing that the Fairchild exception should have been held to be inapplicable when proceedings are directed against one defendant. They submitted that, in such cases, liability could only be established if a claimant could prove on the balance of probability that the mesothelioma was caused by the defendants exposure ie that such exposure had at least doubled the risk of the victim developing mesothelioma. The Supreme Court unanimously dismisses the appeals. It holds that the Fairchild exception applies to cases of mesothelioma involving a single defendant and that there is no requirement for a claimant to show that the defendants breach of duty doubled the risk of developing the disease. The main judgment is given by Lord Phillips, with each of the other justices adding shorter judgments concurring in the result. Numbers in square brackets below are to paragraphs in the judgment. Knowledge about mesothelioma is based in part on medical science and in part on statistical analysis or epidemiology. It is summarised at [19] and in the annex after [112]. Much remains still to be discovered. The courts may revert to the conventional causation test if advances in medical science in relation to this disease make such a step appropriate [70][142][208]. The decision in Fairchild was made in the context of claims against multiple employers who had each been found to be in breach of duty. It left open the question of whether the principle applied where other possible sources of injury were similar but lawful acts of someone else or a natural occurrence. In the subsequent case of Barker v Corus [2006] UKHL 20 the House of Lords answered this question by refining the exception so as to render each employer liable only for the proportion of damages which represented his contribution to the risk. Parliament then intervened to overturn this apportionment of damages, by providing in section 3 of the Compensation Act 2006 that where a person was liable under the common law in tort to a victim who had contracted mesothelioma, that liability was for the whole of the damage caused by the disease, jointly and severally with any other responsible person. Parliament has therefore legislated to impose draconian consequences on an employer or his insurers who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos and the court had to have regard to this when considering the issues in these appeals [58][131][167][185]. The Fairchild exception did apply to single defendant cases [103][113]. The doubles the risk test for causation was therefore only potentially relevant in connection with the question of what constituted a material increase of risk. There was no justification for adopting the test as a benchmark for this. Whether exposure was too insignificant to be taken into account, having regard to the overall exposure, was a matter for the judge on the facts of the particular case [107 108]. Epidemiological evidence alone is not a satisfactory basis for making findings of causation. The exercise of comparing the statistical relationship between exposure and the incidence of the disease with the experience of the individual victim is particularly problematic in mesothelioma cases because of the very long latency of the disease [97 102][163][172] Accordingly the appeals must be dismissed. Even though the judge in Mrs Costellos case did not expressly consider whether the exposure in her case materially increased the risk, if he had thought it insignificant he would have said so [109]. In Mrs Willmores case, the challenges to the judges findings of fact also failed. The court considered that they had been very generous to Mrs Willmore but that it was not justified in taking the exceptional step of disturbing them [166]

This case concerns the correct approach to calculating beneficial interests in property where the legal title to the property is held in joint names by an unmarried couple but there is no express statement of how it is to be shared. Ms Jones and Mr Kernott met in 1981. They had two children together. In 1985 they purchased a house in Thundersley, Essex in their joint names. The price paid was 30,000 with a 6,000 deposit paid exclusively by the proceeds of sale from Ms Joness previous home. No declaration was made as to how the beneficial interest in the property was to be held. The mortgage and upkeep on the house was shared between them. In 1986 they jointly took out a loan of 2000 to build an extension. Mr Kernott did some of the work himself. The relationship deteriorated and in 1993 Mr Kernott moved out. From that point onwards Ms Jones lived in the Thundersley property with both children. In 1996 Mr Kernott bought his own house in Benfleet, Essex. Over the years, the value of the Thundersley property increased and in 2006 Mr Kernott indicated that he wished to claim a beneficial share in it. In response, Ms Jones, in 2007, applied to the county court for a declaration under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 that she owned the entire beneficial interest in the property. By 2008 the property was valued at 245,000. The county court judge noted that the house was first purchased to set up a family home. It was bought in joint names and a presumption arose that they intended to jointly share the beneficial ownership of it as well. Up until 1993 there was no evidence to rebut that presumption. Ms Jones claimed however that in the 14 and a half years following there was evidence that their common intention had changed. Mr Kernott had ceased to make contributions towards the running of the house and had made only very limited contributions towards the support of their children. Furthermore it was mostly during that latter period that the value of the property had increased. The judge held that their common intention had indeed changed. In reliance upon the decision of the House of Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, he held that once the initial presumption of joint beneficial ownership is displaced and there is no further clear evidence as to the division of shares in the property it falls upon the court to infer or impute an intention to the parties as to the division of the property that they, as reasonable and fair people, would have intended. He decided that Mr Kernott was entitled to only a 10% share. Mr Kernott appealed to the High Court arguing that it was wrong for the court to infer or impute a change of common intention and further wrong for the judge, in effect, to substitute a division that he considered to be fair as between the parties. Mr Nicholas Straus, QC sitting as a High Court judge dismissed his appeal. Mr Kernott appealed to the Court of Appeal which, by a majority (Jacob, LJ dissenting), allowed his appeal. The Supreme Court unanimously allows the appeal and restores the order of the county court. Lord Walker and Lady Hale give the lead judgment. Lord Collins agrees with Lord Walker and Lady Hale and adds some reflections of his own. Lord Kerr and Lord Wilson agree in the result but reach it by a different route. Lord Walker and Lady Hale: The principle recognised in Stack v Dowden is that where people purchase a family home in their joint names the presumption is that they intend to own the property jointly in equity also [15]. The starting point is different in cases where the property is bought in the name of one party only. The presumption of joint beneficial ownership arises because (i) purchasing property in joint names indicates an emotional and economic commitment to a joint enterprise and (ii) the practical difficulty of analysing respective contributions to the property over long periods of cohabitation [19 22]. The presumption may be rebutted by evidence that it was not, or ceased to be, the common intention of the parties to hold the property jointly. This may more readily be shown where the parties did not share their financial resources [25]. In the absence of clear evidence of intention, a question arises as to when the court can infer such intention and when the court can, instead, impute an intention. An inference is drawn where an actual intention is objectively deduced from the dealings of the parties; an imputation is one attributed to the parties by the court [26 27]. The search is primarily to ascertain the parties actual intentions, expressed or inferred but if it is clear that the beneficial interests are shared but impossible to infer a common intention as to the proportions in which they are shared, the court will have to impute an intention to them which they may never have had [31]. The following principles apply: (i) the starting point where a family home is bought in joint names is that they own the property as joint tenants in law and equity; (ii) that presumption can be displaced by evidence that their common intention was, in fact, different, either when the property was purchased or later; (iii) common intention is to be objectively deduced (inferred) from the conduct and dealings between the parties; (iv) where it is clear that they had a different intention at the outset or had changed their original intention, but it is not possible to infer an actual intention as to their respective shares, then the court is entitled to impute an intention that each is entitled to the share which the court considers fair having regard to the whole course of dealing between them in relation to the property; and (v) each case will turn on its own facts; financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended or fair [51]. On the facts of this case the county court judge held that the parties intentions as regards the Thundersley property had changed after their separation. It was a logical inference that they intended [Mr Kernotts] interest in Badger Hall Avenue should crystallise in 1995, when they took the house off the market, cashed in an insurance policy, so that Mr Kernott was able to buy a house in his own name [48]. The calculation of their shares on this basis produced a result so close to that produced by the judge that it would be wrong for an appellate court to interfere. Lord Collins agrees with Lord Walker and Lady Hale, holding that the differences in reasoning set out below are largely terminological and conceptual and are likely to make no difference in practice. [58]. Lord Kerr holds that the divergence in reasoning might, in practice, make a difference [67]. The question concerns how far the court should go in seeking to infer intention and when it is justified in imputing it. It is preferable to give effect to the parties intentions where possible but the courts should not be reluctant to recognise when it is not and to impute an intention accordingly. In agreement with Lord Wilson it is not possible to infer the intention in this case but the division that the judge made is a fair one as between the parties and should stand. Lord Wilson considers that on the facts of this case, it is impossible to infer the intentions of the parties and the court can only impute to the parties an intention that the house be held in fair proportions along the lines of those set out by the county court judge [89].

The Finance Act 2015 introduced a regulatory scheme requiring wholesalers supplying duty paid alcohol to be approved by Her Majestys Revenue and Customs Commissioners (HMRC) under section 88C of the Alcoholic Liquor Duties Act 1979 (the 1979 Act). Approval may only be given if HMRC are satisfied that the person seeking to carry on the activity is a fit and proper person to do so. OWD, Hollandwest and Budge Brands (the wholesalers) were already involved in the wholesale supply of duty paid alcohol when the scheme was introduced. They needed HMRC approval to continue to trade. HMRC refused as they were not satisfied that the wholesalers were fit and proper. Each wholesaler appealed to the First tier Tribunal (FTT) against the decision. They asked HMRC to permit them to continue trading whilst the appeals were pending. HMRC refused to do so and the wholesalers brought judicial review proceedings in the High Court challenging that refusal. The High Court dismissed their claims. The Court of Appeal held that temporary approval can be granted to a person under section 88C of the 1979 Act, but not under section 9 of the Commissioners for Revenue and Customs Act 2005 (the 2005 Act). Contrary to the wholesalers argument, it held that considerations of hardship and the impact on the persons appeal rights were irrelevant to the decision on temporary approval. The Court of Appeal further held that if HMRC was not able or willing to permit trading pending the appeal, the High Court was able to grant injunctive relief under section 37 Senior Courts Act 1981. Relief (i.e. a mandatory injunction requiring temporary approval of the wholesalers) would only be granted in rare circumstances, including where there was a clear and properly evidenced claim that a failure to grant interim relief would render the appeal to the FTT futile. The wholesalers appeal and HMRC cross appeal to the Supreme Court. The two questions considered are: (1) What power does HMRC have to permit a person to carry on trading pending the determination of an appeal to the FTT? (2) If HMRC does not have such a power or refuses to exercise it, what interim relief can the High Court grant? The Supreme Court unanimously allows HMRCs appeal against the Court of Appeals conclusion that HMRC has the power to permit temporary trading under section 88C of the 1979 Act. It unanimously dismisses the wholesalers appeal against the Court of Appeals determination that HMRC does not have that power under section 9 of the 2005 Act. Lady Black gives the judgment of the court. Lord Hughes gives a concurring judgment, with which Lord Sumption agrees. Issue 1A the powers of HMRC under section 88C of the 1979 Act HMRC has concluded that the wholesalers were not fit and proper, regardless of any conditions that could be imposed, including a time limit on the approval. In those circumstances, HMRC do not have the power to grant temporary approval pending appeal. If the person is not fit and proper for even a limited period, that holds good whatever purpose the time limited approval would be designed to achieve. The Court of Appeal was right to conclude that considerations of hardship and the impact of maintaining the decision on the efficacy of the appeal were not material to the evaluation under section 88C of whether a person is fit and proper [38]. HMRCs former practice of continuing approval during a winding down period does not prove the existence of the power for which the wholesalers contend [40]. Issue 1B the powers of HMRC under section 9 of the 2005 Act Section 9 permits HMRC to do anything which they think necessary or expedient in connection with, or incidental or conducive to, the exercise of their functions [42]. It is not concerned with ancillary powers that undermine or contradict those functions. Recourse cannot be had to section 9 to provide an alternative route to time limited approval, supplementing section 88C in the way that the wholesalers suggest. This is not only because section 88C itself only permits authorisation under that section, but also because of the attributes of the whole scheme of which section 88C forms a part [45]. By using section 9 powers to enter a wholesaler on the register, HMRC would appear to be holding out as fit and proper a person in relation to whom they have formed the opposite view [46]. The fact that HMRCs decision is subject to an appeal is not a proper foundation upon which to conclude that it is necessary or expedient, incidental or conducive, to the exercise of their functions to assume a power to grant temporary approval [48]. Issue 2 High Court powers In the Court of Appeal, it was common ground that the High Court has the power to grant injunctive relief to assist a wholesaler pending his appeal to the FTT, but there was a dispute as to the basis on which relief could be granted [50]. The two judges at first instance were not satisfied that the evidence in support of injunctive relief was sufficient, and the wholesalers did not have permission to appeal to the Supreme Court in relation to the circumstances in which the High Court may grant injunctive relief [61 63]. The question that arose during the hearing was what form the High Courts order could legitimately take, where a case for injunctive relief was made out [64]. If the High Court orders HMRC to grant temporary approval to the wholesaler where HMRC has concluded that the wholesaler is not fit and proper, it would necessarily be requiring HMRC to be satisfied of the opposite [70]. The High Courts power to order a mandatory injunction is exercisable for the purpose of making a person do something that he has it within his powers to do, yet here there is nothing HMRC can properly do in the exercise of their statutory functions [71]. However, the absence of debate between the parties makes it undesirable to make a definitive pronouncement on this matter, and the fact that the case for relief was not made out in the present case means it is unnecessary to do so [72]. Lord Hughes adds that the legislation may be incompatible with the European Convention on Human Rights, where traders who had an existing business when the registration scheme was introduced, and who are refused approval but have good grounds for appeal, might be forced out of business before their appeal could be determined [77].

SeaFrance SA, a French company, operated a ferry service between Dover and Calais until it ceased operations on 16 November 2011. It was formally liquidated on 9 January 2012, and most of its employees were dismissed. Groupe Eurotunnel SA (GET), the parent company of the Group operating the Channel Tunnel, and Socit Cooprative De Production SeaFrance SA (SCOP), a workers co operative incorporated by a number of former SeaFrance employees to secure the continuance of the ferry service, acquired substantially all of SeaFrances assets on 2 July 2012. This included three of the four SeaFrance vessels, trademarks, IT systems, goodwill and customer lists. GET and SCOP resumed ferry services on 20 August 2012 through GETs subsidiary company, MyFerryLink SAS. The vessels were operated by employees who had almost all worked for SeaFrance. The reemployment of those employees had been incentivised by a statutory Plan de Sauvegarde de lEmploi (known as the PSE3), by which SeaFrances parent company SNCF would provide payments to employers for employing ex SeaFrance employees. The acquisition was referred to the Competition Commission, the regulator at the time. It concluded that there was a relevant merger situation for the purpose of the merger control provisions of the Enterprise Act 2002, which could be expected to result in a substantial lessening of competition in the cross Channel market. The enterprise of SeaFrance continued since its activities continued, even though there had been a hiatus of over seven months in its operations. The Commission imposed restrictions on the operation of the service by GET and SCOP, including a ban on using the ex SeaFrance vessels for ferry services from Dover for 10 years. On appeal to the Competition Appeal Tribunal, the Tribunal gave guidance on the meaning of enterprise in the Eurotunnel I judgment, and remitted the question of jurisdiction back to the new regulator, the Competition and Markets Authority. Upon the remission, the Competition and Markets Authority (which had assumed the functions of the Commission) considered that what had been acquired was an enterprise, and therefore that a relevant merger situation existed. Accordingly they confirmed the restrictions previously imposed by the Commission. That decision was upheld by the Competition Appeal Tribunal in the Eurotunnel II judgment. The Court of Appeal allowed an appeal by a majority, holding that GET and SCOP had not acquired an enterprise, but only the means of constructing a new (but similar) one. In particular, this was because they had not acquired SeaFrances crews. They concluded that it was irrational for the Competition and Markets Authority to reach any other conclusion on the facts. The Supreme Court unanimously allows the appeal by the Competition and Markets Authority, thereby reinstating the decision of the Competition Appeal Tribunal in Eurotunnel II. Lord Sumption gives the judgment of the Court. The merger control provisions of the Enterprise Act 2002 are not limited to the acquisition of a business that is a going concern. The possession of activities is a descriptive characteristic of an enterprise under the Act. An enterprise is subject to merger control if the capacity to perform those activities as part of the same business subsists. [32 35] The test is one of economic continuity. An Acquirer acquiring assets acquires an enterprise where (i) those assets give the Acquirer more than might have otherwise been acquired by going into the market and buying factors of production and (ii) the extra is attributable to the fact that the assets were previously employed in combination in the activities of the target enterprise. The period of time between cessation of trading and acquisition of control of the assets may be a relevant factor, but is not necessarily decisive. [36 40] This was substantially the same principle set out by the Competition Appeal Tribunal in Eurotunnel I, which the Competition and Markets Authority applied in this case. [40 41] The Court of Appeals finding that the Authoritys evaluation was irrational was unjustified. GET and SCOP acquired substantially all the assets of SeaFrance, including trademarks, goodwill, specialist vessels maintained in a serviceable condition, and substantially the same personnel. The Authoritys conclusion that this demonstrated considerable continuity and momentum and the embers of an enterprise, which could be passed to GET and SCOP, was unimpeachable. The order of the French Court of 9 January 2012 to dismiss the employees did not disrupt that continuity and momentum because the order was made on terms that the PS3 preserved the prospect of employment on the ships for the dismissed crew members. [41 43] The majority of the Court of Appeal was wrong to narrow the question of economic continuity to the legal effect of the decision of the French Court in January 2012 and whether this terminated the employment relationship between SeaFrance and its employees. The Competition and Markets Authority is not entitled to any special level of deference: the test for determining whether there is a relevant merger situation and relevant activities is a legal question. [31] But the Authority undertook a broader economic analysis, concluding that there was economic continuity. That evaluation was complex and sensitive to a whole range of factors. It was not a purely legal enquiry. Its economic analysis should be respected. [44 45]

The appeal concerns whether three products manufactured by the Actavis group of companies (Actavis) would infringe a patent whose proprietor is Eli Lilly & Company (Lilly), namely European Patent (UK) No 1 313 508 and its corresponding designations in France, Italy and Spain. The patent relates to the use of the chemical pemetrexed. This has therapeutic effects on cancerous tumours, but, when used on its own it can have seriously damaging side effects. The Patent discloses that these side effects can largely be avoided if a compound called pemetrexed disodium is administered together with vitamin B12. Such a medicament has been successfully marketed, under the brand name Alimta, by Lilly since 2004. Actavis proposed products (the Actavis products) involve pemetrexed compounds being used together with vitamin B12 for cancer treatment; however, rather than pemetrexed disodium, the active ingredient is (a) pemetrexed diacid; (b) pemetrexed ditromethamine, or (c) pemetrexed dipotassium. Actavis contend that because they intend to use the Actavis products which do not include pemetrexed disodium, the claims of the Patent would not be infringed. At trial, Arnold J decided that none of the Actavis products would directly or indirectly infringe the Patent in the UK, or in France, Italy or Spain [2015] RPC 6. The Court of Appeal allowed Lillys appeal to the limited extent of holding that there would be indirect infringement in the four jurisdictions, but agreed with the Judge that there would be no direct infringement [2015] Bus LR 68. Lilly appeals to the Supreme Court against the holding that there would be direct infringement and Actavis cross appeal against the holding that there would be no indirect infringement. The appeal raises the issue of the correct approach to the interpretation of patent claims, and the requirement of the European Patent Convention 2000 (EPC) to take account of so called equivalents. It also raises the issue of the extent to which it is permissible to make use of the prosecution history of a patent when determining its scope. The issue on the cross appeal is whether the application of the law of contributory infringement would justify a finding of indirect infringement in this case. The Supreme Court unanimously allows Lillys appeal and holds that the Actavis products would infringe the Patent in the United Kingdom, and in France, Italy and Spain. Actavis cross appeal is unanimously dismissed, so that, if its products would not directly infringe, they would indirectly infringe as held by the Court of Appeal. On direct infringement, Article 1 of the Protocol on the Interpretation of Article 69(1) EPC provides that the scope of protection afforded to a patentee is not to be limited by the literal meaning of the claims. Article 2 provides that there can be a difference between the interpreted scope of a claim and the scope of protection afforded by it, and when considering the scope of protection equivalents must be taken in to account [33 34]. Further guidance is needed to guide a court through this exercise [53]. Whether an item directly infringes a patent is best approached by addressing two questions through the eyes of the notional addressee of the patent, i.e. the person skilled in the relevant art, namely: 1. Does the item infringe any of the claims as a matter of normal interpretation; and if not, 2. Although the item may be characterised as a variant, does it nonetheless infringe because it varies from the invention in a way which is immaterial? If the answer to either question is yes, there is an infringement; otherwise there is not [54]. On question 1, according to normal principles of interpretation the Actavis products do not infringe the Patent [58]. Question 2 raises the issue of equivalents and poses a more difficult question of principle [59]. The following questions should be considered by a court as a guide to the question of materiality [66]: 1. Notwithstanding that it is not within the literal meaning of the relevant claim(s) of the patent, does the variant achieve substantially the same result in substantially the same way as the invention, i.e. the inventive concept revealed by the patent? 2. Would it be obvious to the person skilled in the art, reading the patent at the priority date, but knowing that the variant achieves substantially the same result as the invention, that it does so in substantially the same way as the invention? 3. Would such a reader of the patent have concluded that the patentee nonetheless intended strict compliance with the literal meaning of the relevant claim(s) of the patent was an essential requirement of the invention? To establish infringement where there is no literal infringement, a patentee would have to establish that the answer to the first two questions was yes and the answer to the third was no [66]. The Actavis products directly infringe the Patent [68]. They all involve a medicament containing the pemetrexed anion and vitamin B12, and achieve substantially the same result in substantially the same way as the invention. Once he or she knew that the Actavis products achieved substantially the same result as the invention, the notional addressee of the Patent would have thought it obvious that this was so, particularly as he or she would have regarded investigating whether pemetrexed free acid, pemetrexed ditromethamine or pemetrexed dipotassium worked as a routine exercise [69]. On the third question, the Court of Appeal had placed too much weight on the words of the claim. It is very unlikely that the notional addressee would have concluded that the patentee could have intended to exclude any pemetrexed salts other than pemetrexed disodium from the scope of protection [70 74]. Direct infringement is also established under French, Spanish and Italian law [92 102]. Recourse to the contents of the prosecution file by a UK court will only be appropriate in limited circumstances, particularly if they clearly resolve a genuine ambiguity in the patent or it would be contrary to the public interest to disregard the file [87 88]. The contents of the file do not justify departing from the conclusion in this case [89]. In the circumstances, Actavis cross appeal does not arise. However, the Supreme Court would have upheld the Court of Appeals determination that Actavis are liable to Lilly for indirect infringement in the United Kingdom [103 112].

Delivering the Courts judgment, Lord Hodge sets out seven principles relevant in the case [10], which counsel for Mr Zoumbas had enumerated. He notes that Lord Kerrs formulation spoke of dictating the outcome of cases such as ZH, and in that case the Court was dealing with British citizens, unlike the children in this case. The benefits of British citizenship are an important factor in assessing whether it is reasonable to expect a child with such citizenship to live in another country. Moreover, Lord Kerr had explained that what he was seeking to say was that no factor should be given greater weight than the interests of a child [12]. Further, the decision maker is required to assess the proportionality of the interference in the particular circumstances in which the decision is made an evaluative exercise that excludes any hard edged or bright line general rule [13]. In this case, the Secretary of State accepted that Mr Zoumbas had established a private life and a family life in the UK. She then concluded that the interference would be in accordance with the law and in pursuit of the legitimate aim of maintaining effective immigration control [14], having referred to the familys unlawful residence, the fact that family life had been established in the full knowledge that they had no right to reside in the UK and could be removed at any time, and the couples appalling immigration history and the unidentified bank credits [15]. Family life would be preserved as the whole family would be removed with Mr Zoumbas [16]. The first part of Mr Zoumbas challenge rests on a mistaken construction of the decision letter. It had been accepted that the status of the well being the children as a primary consideration did not mean that it had in every case to be considered first with other possible countervailing issues considered thereafter. It is important to read the letter as a whole and to analyse the substance of the decision [19]. There is nothing wrong with the Secretary of States use of a template letter in which her conclusion is followed by her reasoning what is important is that the best interests of the children are at the forefront of the decision makers mind [21]. That the conclusions on best interests are set out briefly does not mean they were not considered carefully, and the Secretary of State does not need to record and deal with every piece of evidence in her letter [22 23]. The Court suggests that challenges such as the present would be less likely if her advisers were to express the test in the way it was expressed in ZH (Tanzania), and to expand the explanation of the separate consideration given to the interests of the children [28]. As for the second part of the challenge, it would be possible to conclude, other things being equal, that it would be in the childrens best interests to stay in the UK. But other things are not equal, including that the children are not British citizens [24]. The Court rejected the criticism that the assessment of best interests was flawed because it assumed that the parents would be removed. It was legitimate for the decision maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well being altered that provisional balance [25]. The third part of the challenge cannot succeed, the first two parts having failed [26].

The Financial Services Authority (the FSA) had brought a criminal prosecution against the Appellant, Mr Neil Rollins, for (i) offences of insider dealing contrary to section 52 of the Criminal Justice Act 1993 and (ii) offences of money laundering contrary to sections 327 and 328 of the Proceeds of Crime Act 2002 (POCA). The allegations under (i) related to the sale of shares in a company by which he was employed. The allegations under (ii) related to the transfer of part of the proceeds of the sale from his bank account to a bank account in his fathers name. The Appellant contended that the FSAs powers to prosecute criminal offences were limited to the offences referred to in sections 401 and 402 of the Financial Services and Markets Act 2000 (FSMA). He conceded that the FSA had power to prosecute the insider dealing offences under section 402 of FSMA. However, he challenged the FSAs power to prosecute the money laundering offences, since this had not been provided for by section 402. He argued that FSMA set out a complete code within which the FSA had to operate and that its only powers to prosecute were those referred to in sections 401 and 402. The Crown Court and the Court of Appeal rejected the Appellants arguments. The Appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Financial Services Authority does have the power to prosecute the money laundering offences. Sir John Dyson SCJ gave judgment on behalf of the Court. The Financial Services Authority, like other corporate bodies, was entitled to bring a prosecution for any offence subject to statutory restrictions and conditions and provided that it was permitted to do so by its memorandum and articles of association [paragraphs 11, 14]. Section 401 (2) of Financial Services and Markets Act 2000 provided that offences created by FSMA itself or any subordinate legislation made under the Act could be instituted only by the FSA or the Secretary of State or by the consent of the Director of Public Prosecutions. If section 401 (2) had the effect of conferring the power to prosecute such offences on the FSA, that would support the argument that its power to prosecute was limited to those offences set out in the Act. However, the true effect of section 401 (2) was to limit the power to prosecute to those listed in the section to the FSA, the Secretary of State and the Director of Public Prosecutions and not to limit which offences could be prosecuted [paragraph 15]. There was no policy reason which could have led Parliament to deprive the FSA of the power it previously enjoyed to bring prosecutions for offences other than those listed in sections 401 and 402. The policy considerations pointed the other way. One of the objectives of the FSA as defined by FSMA was to reduce financial crime. It would therefore have been perverse for Parliament to deprive the FSA of its previous power to prosecute financial offences. Similarly the Appellants argument would have the effect of requiring multiple prosecutions in some cases and prevent the FSA from amending charges in other cases where the sought amendment concerned an offence which was not contained within section 401 or 402. [paragraphs 17, 18]. The Appellant had submitted that Parliament must have intended to limit the FSAs power to prosecute offences not created by FSMA itself to those listed in section 402, as there was no other explanation for their inclusion in the statute. This was not correct there were rational reasons [paragraphs 23, 24]. FSMA cannot have set out a complete code within which the FSA to operate. For example, the FSA had powers under other statutes which were not derived from FSMA [paragraph 26].

This appeal arises out of what has become known as the phone hacking scandal. During 2005 6 the Appellant, Mr Glenn Mulcaire, worked as a private investigator, often engaged by staff on the News of the World newspaper, then published by News Group Newspapers Ltd (NGN). During that period, Mr Clive Goodman was employed by NGN as a reporter on the News of the World with responsibility for news about the royal family and household. In January 2007, Mr Mulcaire and Mr Goodman pleaded guilty to offences relating to the interception of voicemail messages of the royal household and were sentenced to six and four months imprisonment respectively. During 2008 10 a large number of civil claims were brought by individuals against NGN and, some against Mr Mulcaire, claiming that messages on their mobile phones had been unlawfully intercepted. [3] [5]. On 10 May 2010, the Respondent, Ms Nicola Phillips, began proceedings against NGN in relation to voicemail messages left on her mobile phone [6]. Ms Phillips worked for Max Clifford Associates (MCA), the corporate vehicle of the well known public relations consultant, Max Clifford. Her responsibilities included trying both to place favourable stories and to prevent the placing of unfavourable stories in the media about MCAs clients [2]. Part of her case was that the contents of voicemail messages left by clients on her mobile included factual information, some of which is private information and some of which is commercially confidential information, including that relating to her clients personal lives and relationships, health, finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans [6]. On 12 October 2010, Ms Phillips applied to add Mr Mulcaire as a defendant and for an order that he serve a witness statement disclosing information under several heads, including the identity of the person instructing him to intercept the messages. He opposed the order for disclosure relying on privilege against self incrimination, that is, on the basis that he could not be required to disclose that information as to do so would tend to expose him to prosecution. Against that, Ms Phillips relied on s.72 of the Senior Courts Act 1981 (the Act) as excluding the privilege [8]. That section applies to, among others, proceedings for infringement of rights pertaining to any intellectual property and, when it applies, it excludes the privilege if the offence to which the person would tend to be exposed is a related offence [9]. The High Court and Court of Appeal considered that both of these conditions were made out. Mr Mulcaire therefore could not rely on the privilege and he was ordered to provide the requested information. The issues on this appeal are therefore: (i) whether information left in voicemail messages on Ms Phillipss mobile is technical or commercial information within the definition of intellectual property such that the proceedings are for infringement of rights pertaining to any intellectual property; and (ii) whether, on the footing that Mr Mulcaire would expose himself to a charge of conspiracy in providing the information ordered, such proceedings would be for a related offence within the meaning of s.72(5) [1]. The Supreme Court unanimously dismisses Mr Mulcaires appeal. S.72 of the Act excludes his privilege against self incrimination: the proceedings brought by Ms Phillips are proceedings forrights pertaining tointellectual property and the conspiracy proceedings to which Mr Mulcaire would expose himself on disclosure of the information amount to a related offence. Lord Walker gives the leading judgment with which Lords Hope, Kerr, Clarke and Dyson agree. Where Parliament has left no room for doubt that it intends the privilege to be withdrawn, there is no need for the Court to lean in favour of the narrowest possible construction of the reach of the relevant provision. An important part of the legislative purpose of these provisions is to reduce the risk of injustice to victims of crimes. That purpose might be frustrated by an excessively narrow approach [14]. Various definitions of intellectual property were put before the Court but they are not particularly helpful because there is no universal definition of the term [18]. The starting point must be the language of the definition in s.72(5). For present purposes the essential point is that the definition in s.72(5) contains the words technical or commercial information. The meaning of those words must be something in which a civil claimant has rights capable of being infringed. The fact that technical and commercial information ought not, strictly speaking, to be described as property cannot prevail over the clear statutory language. Whether or not confidential information can only loosely, or metaphorically, be described as property is simply irrelevant [19] [20]. Not all technical or commercial information is confidential [23]. Conversely a secret about a persons private life is not naturally described in normal usage as technical or commercial, even if it could be turned to financial advantage by disclosing it, in breach of confidence, to the media. [24]. Purely personal information is not other intellectual property within the meaning of s.72(5). The purpose of s.72 was to prevent remedies against commercial piracy from being frustrated, not to cover the whole of the law of confidence [28] [29]. While there may be commercial value in personal information and this may lead to some difficult borderline cases, it is not a reason for adopting an unnatural construction of the definition [31]. On the facts pleaded in this appeal there is no great difficulty as to mixed messages, where some of the information is commercial and some is not. Ms Phillipss pleading is to the effect that the voicemail messages left by her clients contained commercially confidential information. There is no reason to suppose that the commercial information was not significant [32]. There must be a sufficient connection between the subject matter of the claimants civil proceedings and the offence with which the defendant has a reasonable apprehension of being charged. Pursuant to s.72(5) the offence must be committed by or in the course of the infringement to which the proceedings relate unless the offence involves fraud or dishonesty, in which case a looser connection is sufficient [34]. It is well established that conspiracy is a continuing offence. While the offence is committed as soon as the unlawful agreement is made, the conspiracy continues until the point when the agreement is terminated by completion, abandonment or frustration [43]. If Mr Mulcaire conspired to intercept messages on mobile phones, an offence was committed when the unlawful agreement was made. But the offence continued so long as the agreement was being performed. Every interception pursuant to the unlawful agreement would be in the course of the offence [45].

The claimant (respondent to this appeal) was born in 1983. She had cervical smear tests in 2008 and 2012 and cervical biopsies in 2012. Each of these tests was negligently wrongly reported by the defendant hospital (the appellant). In 2013, when the errors were detected, her cervical cancer was too far advanced for her to have surgery which would preserve her ability to bear a child. She was advised to have chemo radiotherapy, which would result in her being unable to do so. Before having the treatment, she had eight eggs collected and frozen. The focus of this appeal is on the damages payable for the loss of the ability to bear her own child. She and her partner wanted to have four children. It was probable that, through surrogacy arrangements, they could have two children using her eggs and his sperm. They then wished to have two more children using donor eggs and his sperm. Her preference was for surrogacy arrangements in California on a commercial basis. If this was not funded, she intended to use non commercial arrangements in the UK. The hospital admitted liability. Assessing damages, the judge held in relation to surrogacy that, following Briody v St Helens & Knowsley Area Health Authority [2000] EWCA Civ 1010; [2002] QB 856 (Briody), he was bound to reject the claim for commercial surrogacy in California as contrary to public policy, and to hold that surrogacy using donor eggs was not restorative of the claimants fertility. By contrast, damages could be awarded for two own egg surrogacies in the UK. The claimant appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The hospital cross appealed against the award for the two own egg surrogacies. The Court of Appeal dismissed the cross appeal and allowed the appeal on both points. The hospital now appeals to the Supreme Court. The appeal raises three issues. First, can damages to fund surrogacy arrangements using the claimants own eggs be recovered? Second, if so, can damages to fund arrangements using donor eggs be recovered? Third, in either event, can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered? By a majority, the Supreme Court dismisses the appeal. Lady Hale gives the majority judgment, with which Lord Kerr and Lord Wilson agree. Lord Carnwath gives a judgment dissenting on issue three, with which Lord Reed agrees. Lady Hales judgment explains that under UK law, in essence, surrogacy arrangements are completely unenforceable; the surrogate mother is always the childs legal parent unless and until a court makes a parental order transferring legal parenthood to the commissioning parents; and the making of surrogacy arrangements on a commercial basis is banned. The details are more complicated [9]. For example, section 2(1) of the Surrogacy Arrangements Act 1985 (the 1985 Act) bans third parties from (among other things) initiating or taking part in negotiations with a view to making surrogacy arrangements on a commercial basis. However, offences under the 1985 Act can only be committed in the UK, and so there is nothing to stop agencies based abroad from making surrogacy arrangements on a commercial basis abroad. Nor does this ban extend to acts by commissioning parents or surrogate mothers [19 21]. As for Briody, it is not binding on the court, and its persuasiveness is affected by subsequent developments in the law and social attitudes relating to surrogacy (see below) [29 39]. Nothing which the claimant proposes to do involves a criminal offence here or abroad. Damages in tort seek to put the injured party in the position she would have been in had she not been injured; but they cannot be recovered where it would be contrary to legal or public policy, or unreasonable [40 43]. On the first issue in the appeal, Briody did not rule out the award of damages for own egg surrogacy arrangements made in the UK; rather, it held that whether it was reasonable to seek to remedy the loss of a womb through surrogacy depended on the chances of a successful outcome. Here, those chances are reasonable, and the claimant delayed cancer treatment to ensure that her eggs were harvested. It is therefore difficult to see why the claim should not succeed [44]. On the second issue, the view expressed in Briody, that damages for donor egg surrogacy arrangements could not be recovered as they were not restorative of what the claimant had lost, was probably wrong then, and is certainly wrong now. There have been dramatic developments in the laws idea of what constitutes a family [30]. And this is the closest one can get to putting the claimant in the position she would have been in had she not been injured. Therefore, as long as the arrangement has reasonable prospects of success, damages for the reasonable costs of it may be awarded [45 48]. On the third issue, UK courts will not enforce a foreign contract if it would be contrary to public policy. But most items in the bill for a surrogacy in California could also be claimed if it occurred here. In addition, damages would be awarded to the claimant, the commissioning parent, and it is not against UK law for such a person to do the acts prohibited by section 2(1) of the 1985 Act. Added to that are developments since Briody: the courts have striven to recognise the relationships created by surrogacy; government policy now supports it; assisted reproduction has become widespread and socially acceptable; and the Law Commissions have proposed a surrogacy pathway which, if accepted, would enable the child to be recognised as the commissioning parents child from birth. Awards of damages for foreign commercial surrogacy are therefore no longer contrary to public policy. However, there are important factors limiting the availability and extent of such awards: both the treatment programme and the costs involved must be reasonable; and it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK; this is unlikely to be reasonable unless the foreign country has a well established system in which the interests of all involved, including the child, are properly safeguarded [49 54]. Lord Carnwaths dissenting judgment differs from the majority on the third issue only. In his view, while this case is not concerned with illegality, there is a broader principle of legal coherence, which aims to preserve consistency between civil and criminal law. It would go against that principle for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. Societys approach to surrogacy has developed, but there has been no change in the critical laws on commercial surrogacy which led to the refusal in Briody of damages on that basis. It would not be consistent with legal coherence to allow damages to be awarded on a different basis [55 68].

This judgment is concerned with a number of points which arise from the Supreme Courts decision in Coventry v Lawrence [2014] UKSC 13. That decision held the occupiers of a Stadium, David Coventry trading as RDC Promotions, and a Track, Moto Land UK Limited, liable in nuisance to the appellants, Katherine Lawrence and Raymond Shields. The appellants were the owners and occupiers of a residential bungalow, Fenland, some 850 yards away. The nuisance arose from the use of the Stadium for speedway racing and other motorcar racing, and the use of the Track for motorcycle racing and similar activities. The appellants brought their proceedings not only against Mr Coventry and Moto Land (the respondents), but also against their respective landlords, Terence Waters and Anthony Morley and a predecessor landlord (the landlords). The effect of the Supreme Courts decision was to reverse the Court of Appeal and restore the trial judges order, which was based on his finding that the respondents, but not the landlords, were liable in nuisance. By the time of the trial, Fenland was unoccupied due to a fire, and is still fire damaged today. The order made by the judge included: (i) An injunction against the respondents limiting the noise which could be emitted from the Stadium and the Track to take effect on 1 January 2012 or, if earlier, when Fenland is again fit for occupation; (ii) Permission to the parties to apply to vary the terms of this injunction not earlier than 1 October 2011; (iii) A provision dismissing the claims against the landlords; and (iv) A direction that the respondents pay 60% of the appellants costs. The effect of the Supreme Courts earlier decision is to restore the orders for an injunction and for damages, as well as the order for costs. Four further issues now arise: (1) Should the injunction be suspended until Fenland is rebuilt? (2) When should the parties be able to apply to the judge to vary the terms of the injunction? (3) Are the landlords also liable to the appellants in nuisance?; and (4) Does the order for costs against the respondents infringe article 6 of the European Convention on Human Rights (the Convention), which protects the right to a fair hearing? Lord Neuberger, with whom Lord Clarke and Lord Sumption agree, gives the main judgment. The injunction imposed by the judge against the respondents should be suspended until Fenland is fit to be occupied, subject to any party having liberty to apply at any time to vary or discharge the injunction. The respondents claim in nuisance against the landlords is dismissed as the landlords neither authorised nor participated in the nuisance. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords participated in, and were consequently liable for, the nuisance. Consideration of the respondents contention that the judges order for costs infringes the respondents rights under article 6 of the Convention is adjourned for a further hearing after notice is given to the Attorney General and the Secretary of State for Justice. The first two issues are of no general application, the third issue is of some significance, and the fourth issue concerns a matter which is important [4]. The two minor issues On the first issue, the injunction should not take effect before Fenland is restored, unless it could be shown that the fact that the injunction is still suspended in some way prevented Fenland being restored [6] [7]. On the second issue, there should not be a delay before the parties are able to apply to vary the injunction [8]. The third issue: the liability of the Landlords in nuisance The law relating to the liability of a landlord for his tenants nuisance is tolerably clear in terms of principle. In order to be liable a nuisance, the landlords either must have authorised it by letting the property or they must participate directly in the commission of the nuisance [11]. In the present case, there can be no question of the landlords having authorised the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting the Stadium and the Track to the respondent tenants. The intended uses of the Stadium and the Track were known to the landlords at the time of the lettings and those uses have in fact resulted in nuisance, but that is not enough to render the landlords liable in nuisance as a result of the letting. It is clear that those uses could be, and could have been, carried on without causing a nuisance to the appellants [15]. Accordingly, if the claim in nuisance against the landlords is to succeed, it must be based on their active or direct participation [18]. Although there is little authority on the issue, the question whether a landlord has directly participated in a nuisance must be largely one of fact for the trial judge, rather than law [19]. The issue whether a landlord directly participated in his tenants nuisance must turn principally on what happened subsequent to the grant of the leases, although that may take colour from the nature and circumstances of the grant and what preceded it [20]. None of the factors upon which the appellants rely establish that the landlords authorised or participated in the nuisance [21] [30]. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords actively encouraged the tenants nuisance, and are therefore liable for that nuisance [66, 69]. The fourth issue: the level of costs The appellants costs at first instance consisted of three components in the light of the Court and Legal Services Act 1990, as amended by Part II of the Access to Justice Act 1999, and in accordance with the Civil Procedure Rules: (1) Base costs: what their lawyers charged on the traditional basis; (2) Success fee: the lawyers were entitled to this because they were providing their services on a conditional fee (no win, no fee) basis; and (3) ATE premium: a sum payable to an insurer who agreed to underwrite the appellants potential liability to the respondents for their costs if the respondents had won. The appellants base costs were 398,000, the success fee was approximately 319,000, and the ATE premium was around 350,000. As a result of the judges order, therefore, the respondents are liable for over 640,000 of a total of around 1,067,000. Even if one ignores the success fee and ATE premium, the fact that it can cost two citizens 400,000 in legal fees to establish and enforce their right to live in peace in their home is on any view highly regrettable [32] [36]. The consequences of the judges order that the respondents pay 60% of the appellants costs means that they have to pay 60% of the 100% success fee as well as 60% of the ATE premium. The respondents contend that, if the court required them to pay 60% of the success fee and of the ATE premium, their rights under article 6 would be infringed [38]. In the light of the facts of this case and the European Court of Human Rights jurisprudence, it may be that the respondents are right in their contention that their liability for costs would be inconsistent with their Convention rights [41]. However, it is unclear whether such infringement of the respondents human rights, if established, should be recognised by a declaration of incompatibility or by other relief, and a declaration of incompatibility ought not to be made without the Government having the opportunity of addressing the court [42]. Accordingly, if the respondents wish to maintain their contention that article 6 is infringed by the order for costs in this case, the present appeal should be re listed for hearing before the Supreme Court, after appropriate notice has been given to the Attorney General and the Secretary of State for Justice [44].

In this judgment the Supreme Court reformulates the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. In so doing it removes the presumption or starting point of the current test, which is rarely if ever rebutted, that it is only in the exceptional case that a child should be so called. At issue in this case is the care of five children. The mother and father at the relevant time were in a relationship and the father is the biological parent of the four youngest children. A sixth child is due to be born to the couple this month. The proceedings began in June 2009 when the eldest child, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial. In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. The judge however asked for further argument on whether she should do so. The Local Authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness. In November 2009 the judge decided to refuse the fathers application for her to be called. Instead, she would rely on the other evidence, including a video recorded interview with the child. The Court of Appeal dismissed the fathers appeal. They did, however, express some concern about the test laid down in previous decisions of that court and suggested that the matter might be considered by the Family Justice Council. The father appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and remits the question of whether the child should give evidence, and if so in what way, to Her Honour Judge Marshall to be determined at the fact finding hearing scheduled for 8 March 2010 in light of the principles set down in this judgment. Lady Hale gave the judgment of the court. The court agreed with counsel for the Local Authority that there were very real risks to the welfare of children which the court must take into account in any reformulation of the approach. [17 to 21] However the current law, which erects a presumption against a child giving live evidence in family proceedings, cannot be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing Convention rights. In care proceedings there must be a balance struck between the article 6 requirement of fairness, normally entails the opportunity to challenge evidence, and the article 8 right to respect for private and family life of all the people directly and indirectly involved. No one right should have precedence over the other. Striking the balance may well mean that a child should not be called to give evidence in a great majority of cases, but this is a result and not a presumption nor even a starting point. [22, 23] Accordingly, when considering whether a particular child should be called as a witness in family proceedings, the court must weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. [24] The court sets out a number of factors that a family court should consider when conducting this balancing exercise. An unwilling child should rarely, if ever, be obliged to give evidence. The risk of harm to the child if he or she is called to give evidence remains an ever present factor to which the court must give great weight. The risk, and therefore the weight, will vary from case to case, but it must always be taken into account. [25, 26] At both stages of the test the court must also factor in any steps which can be taken to improve the quality of the childs evidence, and at the same time decrease the risk of harm to the child. [27, 28] The essential test is whether justice can be done to all the parties without further questioning of the child. The relevant factors are simply an amplification of the existing approach. What the court has done however is remove the presumption or starting point; that a child is rarely called to give evidence will now be a consequence of conducting a balancing exercise and not the threshold test. [30] In this case the trial judge had approached her decision from that starting point. The Supreme Court could not be confident that the judge would have reached the same result had she approached the issue without this starting point, although she might well have done so. Nor did the court consider it appropriate to exercise its own discretion, given that all of the relevant material was not before the court. The question is remitted to the trial judge to decide at the fact finding hearing scheduled for next week. Taking account of the detriment which delay would undoubtedly cause to all of the children concerned, including the unborn baby, there should be no question of adjourning that hearing. [31 to 35]

The Le Strange family (the Estate) is the owner of a substantial amount of land adjoining the east side of the foreshore (the Foreshore) on the east side of the Wash, on the west coast of Norfolk (the Wash), as well as holding an exclusive right to take cockles and mussels from the Foreshore (the Right). In 1970, the Estate granted a lease of the Right to Mr John Loose, who is still holding over under that lease. The appellants operate fishing boats out of Kings Lynn in Norfolk. During the summer of 2007, 13 of the appellants boats fished for cockles in locations claimed by the respondents to be within the area of the exclusive fishery vested in the Estate (the Area). Mr Loose and the Estate (the respondents) subsequently brought a claim in the Chancery Division of the High Court, alleging that the appellants had infringed the Right. The parties accepted that the Estate is the owner by prescription of the Right, but were in dispute as to two issues relating to the extent of the Area. The first issue was which of the low water measurements should determine the location of the western, seaward, boundary of the Area. Four different types of low water measurement were contended for: (i) mean low tide; (ii) mean spring low tide; (iii) mean neap low tide; and (iv) the lowest astronomical tide, the most extreme neap low water, which occurs every 18.6 years. At first instance, the High Court held that the mean spring low water represented the location of the western, seaward boundary of the Area; whereas the Court of Appeal concluded that it was the lowest astronomical tide mark. The second issue between the parties was whether the Right extended to sandbanks which, having been previously separated from the Foreshore, became attached to it as a result of the gradual silting up of channels separating the banks and the Foreshore. The appellants contended that the respondents must establish that the Right extended to the relevant sandbanks before they became part of the foreshore; whereas the respondents contended that either the Right applied to the Foreshore as it was constituted from time to time, or, by the doctrine of accretion, the sandbanks were treated in law as added to the Area when it became attached to the Foreshore. The High Court and the Court of Appeal accepted both the respondents arguments on this issue. The Supreme Court unanimously (i) dismisses the appeal regarding the seaward boundary, finding that the boundary is determined by the lowest astronomical tide, and (ii) allows the appeal in relation to the second issue, holding that the Estates right to fish does not extend to the sandbanks which attach to the Foreshore as and when they become so attached. Lord Neuberger and Lord Carnwath give a joint judgment, with which the other Justices agree. There are two important principles which apply to both issues. The first principle is that unless it is taken away from them, the public have the right to gather fish and shellfish from the foreshore and since Magna Carta it has not been possible for the Crown, the owner of the foreshore, to grant a private fishery ( ousts the public right) [32 35]. The second principle is that, in order to establish that he has obtained a fishery (as with any right) by prescription, a person must establish that he has physically enjoyed the fishery as of right for the requisite period, so the extent of the right must be determined by the extent of the actual or probable use in the past, not by inquiring into the mind of the notional grantor [44 47]. The first issue: the seaward boundary Resolving the first issue involves answering two questions. The first is whether the western boundary is fixed or whether it fluctuates with the relevant low mark, because, over time, the low water marks, marking the edge of the sea at low water had moved further seaward [57]. The Court concludes that it is a fluctuating boundary. The evidence clearly establishes that during the substantial period during which the prescriptive Right to take shellfish from the Foreshore was exercised, the only way in which the shellfish were gathered was by individuals walking from the land when the tide was out [58]. In those circumstances, it was very likely that the putative Right would have been exercised over an area which was defined or limited by a shifting low tide mark [58]. It is not as if the existence of such a fluctuating right would have detrimentally affected any other interests of any significant value [60]. The second question is which of the suggested low water marks is the appropriate boundary [57]. The Court concludes that the most satisfactory low water mark is the lowest astronomical tide, as this means that all parts of the Foreshore which are at any time uncovered by the sea are included in the Area, whereas any other selection involves some of those parts being excluded from the Area [64]. The second issue: the previously separated sandbanks As to the respondents first argument, the evidence does not establish that the Estates prescriptive Right extends to sandbanks which were not previously joined to the Foreshore as and when they become so attached [70]. There are two distinctions between the change in the Foreshore and the fluctuation of the low tide mark boundary. First, (while the silting up of channels which leads to the attachment is gradual), the actual attachment of sandbanks to the Foreshore itself will happen at one moment, whereas the shifting of the low tide mark will normally be gradual [71]. Second, and of particular significance, the public will have had the right to take fish, including shellfish, from such a sandbank. Unlike the position in relation to the fluctuating low tide mark, and notwithstanding the respondents contention to the contrary, it is by no means plain or obvious that, once a sandbank became attached to the Foreshore, the Estate would have exercised an exclusive Right to take shellfish from that former sandbank [72 73]. In fact, it appears unlikely that local fisherman would have been prepared to accept the Estate maintaining its exclusive Right to fish over former sandbanks which became attached to the Foreshore [73]. The fact that it is common ground between the parties that one of the sandbanks, Stubborn Sand, falls within the Area, is not inconsistent with the Courts conclusion [74]. As to the Respondents second argument, based on accretion, the doctrine of accretion is concerned with gradual and imperceptible changes in a boundary; in the present case, however, there is a specific moment in time when the whole of a sandbank becomes attached to the Foreshore [78]. There is a difference in kind between the gradual extension of one recognised bank and the joining up of two formerly distinct banks. There is no room for the doctrine of accretion in relation to the sandbanks which became connected to the foreshore in the present case [80]. Conclusion The Court would only be able to define the precise extent of the Area if the parties were able to agree it following receipt of the Courts judgment. In the absence of agreement, the Court considers that the best course of action would be to remit the proceedings to the Chancery Division to enable the precise extent of the Area to be identified [83]. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html

The Scottish Parliament decided to address the health and social consequences arising from the consumption of cheap alcohol by a minimum pricing regime (the Regime). The Alcohol (Minimum Pricing) (Scotland) Act 2012 (the 2012 Act) amends schedule 3 to the Licensing (Scotland) Act 2005 by inserting in the licence which any retail seller of alcohol in Scotland must hold, an additional condition that an alcohol product must not be sold at a price below a statutorily determined minimum price per unit of alcohol. The minimum price is to be set by secondary legislation. The current proposal is 50 pence per unit of alcohol. The Scottish Ministers have undertaken not to bring the 2012 Act into force or to make any order setting a minimum price until determination of these proceedings. The 2012 Act contains a requirement for Scottish Ministers to evaluate and report to the Scottish Parliament on its operation after five years, and a provision terminating its operation automatically after six years, unless the Scottish Ministers by order affirmed by the Scottish Parliament determine that it should continue (the Sunset Clause). The appellants presented a petition for judicial review challenging the lawfulness of the 2012 Act. The remaining ground of challenge is that minimum unit pricing is disproportionate under EU law, namely: article 34 of the Treaty on the Functioning of the European Union (TFEU) and Regulation (EU) No 1308/2013 establishing a Common Organisation of the Markets in agricultural products (including wine) (the Single CMO Regulation) and the Common Agricultural Policy set out in article 39 TFEU (CAP). The claim was rejected at first instance. The Extra Division of the Inner House hearing the appellants reclaiming motion made a preliminary reference to the Court of Justice of the EU (CJEU). Following a ruling from the CJEU, the First Division of the Inner House refused the reclaiming motion. The Supreme Court unanimously dismisses the appeal. Lord Mance gives the judgment with whom the remaining six Justices agree. The 2012 Act does not breach EU law. Minimum pricing is a proportionate means of achieving a legitimate aim. The CJEUs Judgment The issues have to be examined in light of the guidance given by the CJEU: [5]. Advocate General Bot (the AG) and the CJEU both assimilated the analysis of proportionality under articles 34 and 36 TFEU and under the Single CMO Regulation. The AG conducted a three stage proportionality analysis: (i) appropriateness, (ii) necessity and (iii) a balancing of interests. The CJEU, in contrast, conducted a two stage analysis: (i) appropriateness and (ii) necessity, but appears to have subsumed an element involving a balancing of interests into the second stage of analysis: [9] and [15]. The CJEU concluded that where a national court examines national legislation in the light of the justification relating to the protection of health under article 36 TFEU it is bound to examine objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO: [13] [14]. The issues The respondents accept that minimum pricing will affect the market and EU trade in alcohol. The issue is therefore whether the respondents can justify the EU market interference under article 36 TFEU and the parallel principles governing wine under the CAP and Single CMO Regulation: [3] [4] and [18]. The appellants accept the legitimacy and appropriateness of the objective pursued by the respondents. The parties were not however agreed as to the precise implications or qualifications of the objective: [18]. The objectives pursued by minimum pricing The objective as it was put before the CJEU was two fold: reducing, in a targeted way, both the consumption of alcohol by consumers whose consumption is hazardous or harmful, and also, generally, the populations consumption of alcohol: [19]. However, the objective is more refined than might appear [20]. The aim is not that alcohol consumption be eradicated or that its costs should be made prohibitive for drinkers. The aim is to strike at alcohol misuse and overconsumption manifesting themselves in particular in the health and social problems suffered by those in poverty in deprived communities: [20] [28]. Less restrictive measures to achieve the same aim The appellants submission that an excise or tax would be a less restrictive and equally effective way of achieving the governments objectives is rejected. The Supreme Court is ready to accept, contrary to the view on which the courts below proceeded, that the relevant EU directives (Council Directive 92/83/EEC, Council Directive 92/84/EEC and Council Directive 2008/118/EC) would permit additional excise duties or VAT levied at different rates by references to narrowly defined bands of alcoholic strength: [38] [45]. Nevertheless and in agreement with the Lord Ordinary, minimum pricing targets the health hazards of cheap alcohol and the groups most affected in a way that an increase in excise or VAT does not. The latter would be felt across the board in relation to the whole category of goods to which it applied and unnecessarily affect groups which are not the focus of the legislation: [34] [37]. Second, in agreement with the Lord Ordinary, minimum pricing is easier to understand and simpler to enforce. It would not be open to absorption (e.g. by selling alcohol below cost in order to attract other business onto their premises): [46]. The lack of market impact analysis and balancing under proportionality It is unclear how far an objective, which is reasonable and can only be achieved in one way, can or should be measured against an assessment of any damage which giving it effect might cause to the ordinary operation of the EU market. [47]. But the CJEUs refusal to endorse the AGs third stage enquiry is an indication that the matter should be treated very lightly [48]. The comparison to be undertaken is between two incomparable values: (i) health and (ii) the market and economic impact on producers, wholesalers and retailers of alcoholic drinks across the EU. The courts should not second guess the value which a domestic legislator puts on health. As such, there is limited scope for the criticism made by the appellants about the lack of EU market impact evidence [48]. An analysis of the market and competition impact material that is available demonstrates that the impact will be minor: [50] [62]. The Sunset Clause indicating the provisional nature of the Regime is a significant factor in favour of upholding it: [63]. The submission that the Scottish Government should have gone further than it did to assess market impact is not realistic: [63].

The issues in the appeal were (1) whether there should be a presumption of anonymity in civil proceedings in the High Court relating to a patient detained in a psychiatric hospital or otherwise subject to compulsory powers under the Mental Health Act 1983 (the MHA 1983) and (2) whether there should be an anonymity order on the facts of this particular case. The appellant, C, who had a history of severe mental health problems, was convicted of murdering his former girlfriend and her partner in 1997. He was sentenced to life imprisonment with a tariff subsequently set at 11 years. During his imprisonment he was transferred to a high security psychiatric hospital on the direction of the Secretary of State for Justice under the MHA 1983 for psychiatric treatment, with a restriction order which meant that the appellant could not be granted leave of absence, transferred to another hospital, or discharged without the consent of the Secretary of State. In July 2012 the appellants responsible clinician applied unsuccessfully for consent for the appellant to have unescorted leave in the community to assess his suitability for discharge. The appellant applied for discharge to the Firsttier tribunal. On 25 April 2013 the tribunal notified the Secretary of State that conditional discharge (subject to supervision, supported accommodation and further treatment) would be suitable for the appellant, but that if he was not conditionally discharged he should remain in hospital. The Secretary of State referred the case to the Parole Board. The appellants responsible clinician then made a further application for consent for the appellant to have unescorted community leave, which the Secretary of State refused on 18 October 2013. The appellant applied for judicial review of that decision. In December 2013 the High Court ordered that the appellant be anonymised in the proceedings and granted permission to bring the claim. The claim was rejected by Cranston J, who also refused an application for the anonymity order to remain in force. The appellant appealed in relation to the refusal of anonymity, but the Court of Appeal upheld the judges order. The appellant brought a further appeal on the anonymity issue to the Supreme Court. In the meantime the Parole Board approved the appellants conditional release on life licence and he was released from hospital in October 2015. The Supreme Court unanimously allows the appeal against the refusal to maintain the anonymity order protecting the appellant. It finds that there is no presumption of anonymity and the question in High Court proceedings relating to the compulsory powers under the MHA 1983 is whether an order for anonymity is necessary in the interests of the patient. Such an order was necessary in the appellants interests in this case. Lady Hale gives the only substantive judgment. The rules governing privacy and anonymity in all civil proceedings in the High Court are found in rule 39.2 of the Civil Procedure Rules [15]. The general rule that hearings should be held in public is subject to established exceptions in relation to whole classes of hearings such as those relating to children, which should normally be heard in private [17]. Most of the important safeguards secured by a public hearing can be achieved without the press publishing or the public knowing the identities of the people involved, but it is for the court and not the parties to balance the interests at stake [18]. It is necessary to distinguish between ordinary civil proceedings in which a mental patient may be involved, and proceedings concerning the compulsory powers under the MHA 1983 [21]. For the latter there is a presumption of privacy and anonymity in the rules governing applications to the First tier and Upper tribunals [24]. Similar rules providing for anonymity are in place for the Court of Protection, the other specialist jurisdiction dealing with people with mental disorders or disabilities [25]. As regards the High Court, it was recognised by the House of Lords in the leading case of Scott v Scott [1913] AC 417 that the principle of open justice did not extend to proceedings relating to wards of court and to lunatics. The Court of Appeal in the present case wrongly treated this exception as limited to private law litigation concerned with the protection and administration of property, when in fact there were already statutory powers similar to the compulsory powers under the MHA 1983 at the time of the decision of the House of Lords, and the judicial safeguards for patients under those statutes were also conducted in private [29]. The closest analogy with the present case was with proceedings in the tribunals, which were concerned with risk as well as diagnosis when considering applications in respect of transferred prisoners and restricted patients [31]. The privacy rules in the tribunals were a proper and proportionate departure from the principle of open justice [32], as the hearings inevitably involved examination of confidential medical examination about the patient. Judicial review of the Secretary of States decisions as to discharge of such patients was no different [33]. Fear of disclosure of confidential information might inhibit a patient from frank dealings with his medical team and from bringing proceedings to challenge his detention or treatment [34]. The question in all these cases was that set out in CPR 31.2(4), namely whether anonymity was necessary in the interests of the patient. There should not be a presumption in favour of anonymity in every case but a balance should be struck between the public right to information about decisions in respect of notorious criminals and the potential harm to the patient and all others whose treatment could be affected by the risk of exposure [36]. The present case concerned a horrendous crime which caused incalculable distress to the families of the victims, who have statutory rights to be informed about the arrangements made for the discharge of the appellant should they so wish [37]. The public interest in knowing how difficult and sensitive cases of this sort were decided was protected by holding a public hearing, even if the identity of the patient concerned was not disclosed [38]. In this case there was a risk to the appellant from members of the public. He was much more likely to lead a successful life in the community if his identity was not generally known [39]. Putting all these factors into the balance an anonymity order was necessary in the interests of the appellant, without which there was a real risk that his long years of treatment and reintegration into the community would not succeed [40].

The appellant Mark Golds was convicted by a jury of the murder of his partner. The medical evidence was that he had an abnormality of mental functioning arising from a medical condition. He admitted in court that he had killed his partner. The sole issue in the case was whether he had been in the grip of a psychotic condition when he did so, so as to satisfy the requirements for the partial defence of diminished responsibility and reduce the charge of murder to manslaughter. The law to be applied was section 2 of the Homicide Act 1957 after its revision by the Coroners and Justice Act 2009, with the relevant test being whether the appellants ability to understand what he was doing, to form a rational judgment or to exercise self control was substantially impaired [5]. The trial judge correctly identified the questions which the jury needed to address, and provided a written summary of the ingredients of diminished responsibility. On the issue of substantial impairment, the judge told the jury that he was not going to give them specific guidance on the meaning of the everyday word substantially, unless it created difficulty and they requested assistance. The jury did not ask for further clarification or assistance. The appellant appealed against his conviction, including on two issues relating to the correct approach to the statutory test. Firstly, where a defendant, being tried for murder, seeks to establish that he is not guilty of murder by reason of diminished responsibility, whether the Court was required to direct the jury as to the definition of the word substantial in the phrase substantially impaired in s.2(1)(b) Homicide Act 1957, as amended by s.52 Coroners and Justice Act 2009? Secondly, if the judge is required to, or if the judge of his own accord chooses to, direct the jury on the meaning of the word substantial, is it to be defined as something more than merely trivial, or alternatively in a way that connotes more than this, such as something whilst short of total impairment that is nevertheless significant and appreciable? The Court of Appeal dismissed his appeal. There was no authority requiring the judge to give direction on the meaning of substantial, and if he had done so it would have been wrong to direct that it would suffice if the impairment was more than merely trivial. Mr Golds appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Golds appeal. Lord Hughes gives judgment, with which the rest of the Court agrees. In a murder trial where diminished responsibility is an issue, the judge is not ordinarily required to direct the jury beyond the terms of the statute, and should not attempt to define the meaning of substantially. However, if there is a risk that the jury will misunderstand the meaning of substantial, then a direction is required. Whether this risk arises is a matter for the judge. This may be the case where the jury has been introduced to the question of whether any impairment beyond the trivial will suffice, or has been introduced to the concept of a spectrum between greater than trivial and total. The judge must direct that while an impairment must be more than merely trivial to be substantial, it is not the case that any impairment that is more than trivial will suffice [43]. Lord Hughes carries out a comprehensive review of the treatment of the expression substantial impairment in the context of the diminished responsibility defence in cases from both England and Scotland (from whose common law the English defence was derived). This included the old formulation of the defence in the Homicide Act 1957 before it had been amended by the Coroners and Justice Act 2009. In the earlier formulation the phrase substantially impaired applied to the global concept of mental responsibility, rather than to the ability to do one or more specified things, as it now does [6]. There is no indication that Parliament wished the same expression to carry a different meaning in the new the formulation of diminished responsibility, or therefore that the authorities on the old formulation should not apply to the new law [30 35]. In ordinary usage, substantial is capable of meaning either (1) present rather than illusory or fanciful, thus having some substance, or (2) important or weighty. Either sense can be used in law making, and the word may take its meaning from its context. The review of the authorities clearly shows that in the context of diminished responsibility the expression substantially has always been held to be used in the second of the two possible meanings [27]. This meaning of the expression also accords with principle there must be a weighty reason for a reduction from murder to the lesser offence of manslaughter, and not merely a reason which just passes the trivial [36]. In the authorities reviewed, the expression substantially impaired has been consistently treated as a question of degree, and one that should be left to the jury. The cases repeated and re emphasised, but did not attempt to re define the statutory expression. However, they did proceed on the assumption that substantially in this context meant impairment which was of some importance, or a serious degree of impairment. It was not contemplated in any of the cases considered that it was sufficient that the impairment merely passed triviality [9 26]. Where triviality was mentioned, as in R v Lloyd [1967] 1 QB 175, it was in the context of a direction to the jury that substantial impairment fell between two extremities: more than merely trivial, but less than total. It is clear from the decision in that and other appeals that there was no intention to direct that any impairment beyond the trivial sufficed, or that the reference to the extremities of possible impairment should provide a definition of substantial impairment. Beyond the merely trivial, what amounted to a substantial impairment was a matter of degree for the jury. There is usually no need for the jury to be directed on the meaning of ordinary words: any attempt to find synonyms or re define such words complicates the jurys task and leads to further debate. There will be many cases where the need for elucidation does not arise, for example where the suggested impairment, if it existed, is clearly substantial. If the need does arise, the judge may offer help on what the expression means, but must avoid substituting a single synonym, and it is usually better to avoid the spectrum referred to in R v Lloyd [37 42].

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

The question in this appeal is whether the court has the power to order a closed material procedure for the whole or part of the trial of a civil claim for damages. This question is formulated as a preliminary issue which arose in the context of claims brought by the respondents against the appellants. The respondents claimed compensation for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay. They claimed that the appellants had been complicit in what they alleged had happened. These claims settled prior to the hearing before the Supreme Court. However, the appellants pursued their appeal which was accepted by the Supreme Court on the basis that a decision is needed to clarify the law on this point of general importance. The appellants claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They requested that this material be put into a closed defence and that the proceedings take place with parallel open and closed hearings and judgments. The respondent and the other claimants objected and this dispute formed the basis of the preliminary issue. The preliminary issue defined closed material procedure as a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest. The closed material would be available to special advocates, who act in the interests of the excluded party but who cannot take instructions from them, and the court. At first instance, Silber J granted a declaration that it could be lawful and proper for a court to order a closed material procedure in a civil claim for damages: [2009] EWHC 2959 (QB). The Court of Appeal (Lord Neuberger MR, Maurice Kay and Sullivan LJJ) disagreed. They denied that a court had such a power: [2010] EWCA Civ 482. The Supreme Court, by a majority, dismisses the appeal. The lead judgment is given by Lord Dyson, with whom Lords Hope, Brown and Kerr agree. Lord Phillips would also dismiss the appeal but for different reasons. Lord Mance, with whom Lady Hale agrees, and Lord Clarke give dissenting judgments. Lord Rodger, who died before judgment was given in this case, had indicated that he would have dismissed the appeal. The court unanimously decides that there is no power at common law to replace public interest immunity (PII), whereby a judge decides whether in the public interest certain material should be excluded from a hearing, with a closed material procedure. Such a change could only be for Parliament to make: [67] [69], [107], [152], [192]. Lords Dyson, Hope, Brown and Kerr further hold that there is no power at common law to introduce a closed material procedure following the conclusion of the normal PII process. A closed material procedure, unlike the law relating to PII, involves a departure from the principles of open and natural justice, which are essential features of a common law trial: [10] [14]. In certain specified cases, Parliament has enacted legislation which departs from the open justice and natural justice principles in introducing a form of closed material procedure and special advocates. This legislation responds to the increasing need in recent years to balance the public interest in maintaining a fair justice system with the public interest in the protection of national security. The court has an inherent power to regulate its own procedure. In so doing it may introduce innovations in the interests of justice. However, the court cannot exercise its power to regulate its own procedures in such a way that will deny parties their common law right to a fair trial: [18] [22]. The case of R v Davis [2008] AC 1128 is analogous. The House of Lords in Davis decided that the right to be confronted by ones accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament could do that. The closed material procedure excludes a party from the closed part of the hearing. This prevents him from being able to see and challenge the evidence and submissions made in the closed hearing. It also prevents him from reading the closed part of the judgment. He may never know why his case was decided the way it was. The use of special advocates can mitigate some of these defects but they cannot cure them. In many cases special advocates will be hampered by not being able to take instructions from their client on the closed evidence. Accordingly, a closed material procedure cannot properly be described as a development of the common law process of PII: [27] [37]. There is no clear and established line of authority to support the proposition that the court has power to order a closed material procedure in the absence of statutory authority: [51] [59], [85]. There are certain limited classes of case, such as wardship cases in which the interests of the child are paramount, or intellectual property cases where the whole object of the proceedings is to protect a commercial interest, where a departure from the normal rule is justified for special reasons in the interests of justice. However, these cannot be relied upon to justify the creation of a general rule applicable to all civil litigation: [62] [66]. It is not for the courts to extend something as controversial as the closed material procedure beyond the boundaries which Parliament has chosen to draw for its use. If this is to be done at all, it is better done by Parliament: [47] [48], [67] [69], [72] [74], [78]. The question of whether it would be open to the court to adopt a closed material procedure if the parties consented does not need to be decided in this case and is left open: [46], [75], [99]. In Lord Browns view, however, consent cannot justify recourse to a closed material procedure: [84]. Lord Phillips leaves the question of whether there is a common law power to permit a closed material procedure open: [196]. Lord Mance, with whom Lady Hale agrees, and Lord Clarke would have held that the court has the power, in certain circumstances, to order a closed material procedure. They disagree, however, over what those certain circumstances are. In Lord Mances view, the court may order a closed material procedure, but only where the closed material is in the defendants possession and the claimant consents in order to avoid his claim being struck out: [112] [121]. For Lord Clarke, the circumstances in which a court may order a closed material procedure are not necessarily so limited. In Lord Clarkes view, after the PII process has been completed the parties should consider their respective positions and make representations to the judge as to the appropriate way forward, which may be to order a closed material procedure. The precise circumstances in which a closed material procedure may be ordered would be for the court to work out in a concrete case: [159] [188].

This issue in this appeal is when time starts to run for a claim by a part time judge to a pension under the Part time Workers Directive (Directive 97/81), as applied by the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (PTWR). Regulation 5 of the PTWR provides that a part time worker is entitled not to be treated by their employer less favourably than the employer treats a comparable full time worker, either with regard to the terms of their contract or by being subject to any other detriment. Regulation 8 of the PTWR provides insofar as is relevant: (2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment the last of them For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (4) (2) (a) where a term in a contract is less favourable, that treatment shall be treated, , as taking place on each day of the period during which the term is less favourable; The Appellants are four judges, each of whom has held one or more appointments as fee paid part time judges, in some cases moving between such part time and full time salaried appointments. Judicial pensions, for those who are appointed on or after 31 March 1995, are provided for under the Judicial Pensions and Retirement Act 1993 (the 1993 Act). The basic concept in that Act is qualifying judicial office (s.1). The Appellants, so long as not being paid on a salaried basis, were excluded from the definition of qualifying judicial office, and therefore were excluded from rights to a pension. The Appellants brought claims on the basis that they had been the subject of less favourable treatment in the provision to them of a judicial pension. Each lodged a claim with the Employment Tribunal more than three months after the end of a part time appointment, and therefore out of time if that is the relevant date for regulation 8 of the PTWR, but within time if the relevant date is the date of retirement. At first instance EJ Macmillan held that the three months started to run from the end of any part time appointment, and thereby held that the claims were brought out of time. There has been no substantive judicial consideration of this issue before the Upper Tribunal and Court of Appeal, as the issue has been treated as subject to the appeal in Ministry of Justice v OBrien. However, before the Supreme Court the issue is now understood as one of domestic law, and has been argued fully. The determinative question is: when did the less favourable treatment occur? The Supreme Court unanimously allows the appeals. Lord Carnwath gives the sole judgments, with which the other Justices agree. As judicial officers are not employed under a contract of employment, the PTWR must be construed in an artificial context. determining this case, it must be borne in mind that the judicial pension scheme is not based upon individual appointments. Instead, regard must be had to the composite term qualifying judicial office, which may include a number of different appointments [31]. That special feature of the scheme must be taken into account when making the comparison between part time and full time judges called for by the PTWR, as it may be misleading or unfair to direct attention to the nature and timing of individual part time appointments [32]. There is no reason why entitlement to pension should be governed by the varied combinations of fee paid or salaried offices undertaken by different individual judges. This does not sit well with the aggregate approach provided for by the 1993 Act [33]. Regulation 5 of the PTWR makes clear that unfavourable treatment may relate to the terms of a contract or any other detriment resulting from an act or failure to act by the employer. By analogy, in the context of judicial pensions, a part time judge may properly complain: (1) during their period of service that their terms of office do not include proper provision for a future pension; and, (2) at the point of retirement, that there has been a failure to make a proper pension available. The former does not exclude the latter [34]. This accords with case law, which indicates that the point of unequal treatment occurs at the time the pension falls to be paid, and accords with the common sense of the matter [35].

This appeal brought by the husband concerns the jurisdiction of an English court to make a maintenance order in favour of the wife under section 27 of the Matrimonial Causes Act 1973 (as amended) (section 27) when the parties had mostly lived in Scotland and the divorce proceedings were conducted there. The parties married in England in 1994 and lived together in Scotland between 1995 and 2012, when they separated and the wife returned to England. She issued a divorce petition in England in July 2013 and the husband issued a writ for divorce in Scotland in October 2014. As the parties had last lived together in Scotland, the application for divorce was assigned to the Scottish court. On 13 January 2015 the wife consented to an order dismissing her petition in England and she issued an application under section 27 in England for maintenance payments. The husband applied to stay or dismiss this application on the basis that the English court did not have or should not exercise jurisdiction to hear the application. The English High Court rejected the husbands challenge and ordered maintenance to be paid by the husband. The husband unsuccessfully appealed against the decision to the Court of Appeal. The husband now appeals to this Court in relation to the jurisdictional issues. The issues relate to Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation) and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (Schedule 6 and the 2011 Regulations, respectively), promulgated by the Secretary of State for Justice pursuant to section 2(2) of the European Communities Act 1972 (the ECA 1972). By a majority, the Supreme Court dismisses the appeal. Lord Sales gives the lead judgment, with which Lord Kerr agrees. Lady Black gives a concurring judgment. Lord Wilson gives a dissenting judgment, with which Lady Hale agrees. In the lead judgment, Lord Sales sets out the four issues that arise on the appeal: (1) whether under section 27 an English court has jurisdiction to make any order for maintenance in a case with no international dimension; (2) if so, whether Schedule 6 allows for an English court to retain its previous discretion to stay maintenance proceedings before it on the ground of forum non conveniens (ie the courts discretion to make an assessment as to which jurisdiction is the most appropriate); (3) if not, whether the purported removal of that discretion was outside the scope of the Secretary of States powers in section 2(2) of the ECA 1972; and (4) if not, whether the husbands divorce proceeding in Scotland is a related action for the purposes of article 13 of the Maintenance Regulation and the corresponding provision in Schedule 6 and, accordingly, whether the English court should decline jurisdiction in respect of the wifes claim for a maintenance order under section 27 [7]. Lord Sales considers that the European Union (EU) legislation governing jurisdiction in cross border cases treats maintenance obligations and questions of marital status, including divorce, as separate matters for the purposes of jurisdiction [8] [24]. Maintenance obligations are covered by their own inter state jurisdiction regime set out in the Maintenance Regulation [17]. Schedule 6 applies the provisions of the Maintenance Regulation to the allocation of jurisdiction for intra state cases within the United Kingdom relating to maintenance [22] [23]. On the first issue, the husband submits that section 27 can only apply if a case falls to be governed by both the Maintenance Regulation and by Schedule 6, which would have the effect of it only applying in inter state cases. Lord Sales considers (and Lord Wilson agrees) that section 27 does not require that both the Maintenance Regulation and Schedule 6 apply. Section 27 refers to both the Maintenance Regulation and Schedule 6 only in the sense that together they cover the whole possible field of inter state cases and intra state cases [26], [135] [140]. On the second issue, Lord Sales follows EU case law to hold that the scheme of the EU legislation is inconsistent with the courts of a Member State retaining any discretionary power to stay proceedings on forum non conveniens grounds [28]. This is particularly applicable to the Maintenance Regulation, which aims to afford special protection to a maintenance creditor by giving him or her the right to choose jurisdiction [29]. Schedule 6 replicates the scheme of the Maintenance Regulation in domestic law for intra state cases, and accordingly has the effect of removing any discretion based on the domestic forum non conveniens doctrine [34]. On the third issue, Lord Sales considers (and Lord Wilson agrees) that the making of the 2011 Regulations is within the wide power conferred on the Secretary of State by section 2(2) of the ECA 1972 to make subordinate legislation [38], [141] [145]. On the fourth issue, in Lord Saless judgment the husbands divorce proceeding in Scotland is not a related action within article 13 of the Maintenance Regulation, so that article (and the corresponding provision in Schedule 6) does not permit the English court to decline jurisdiction [40]. The Maintenance Regulation must be considered in light of its fundamental object of conferring the right to choose jurisdiction on a maintenance creditor [41]. The word actions in article 13 refers primarily to maintenance claims to which the special regime in the Regulation applies. Holding it to mean any legal proceedings would undermine the object of the Regulation [45]. There is no relevant connection between the wifes section 27 maintenance claim in England and the Scottish proceedings concerned with determining marriage status [46]. In her concurring judgment, Lady Black agrees with Lord Saless conclusion on article 13, despite the fact that it leads to the potential fragmentation of the proceedings required to resolve financial affairs upon divorce. Based on the wording of article 13, with the object of protecting the maintenance creditor in mind, she considers that the English and the Scottish proceedings are not related actions [91]. In his dissenting judgment, Lord Wilson views the English and Scottish proceedings as related actions for the purpose of article 13, giving the English court the power to stay or decline the wifes maintenance application. He would adopt a broad, common sense approach to the interpretation of the article [162]. As a result, Lord Wilson would have allowed the husbands appeal [163].

The Supreme Court unanimously allows the appeal, holding that the reasonable tolerability test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future. HJ and HTs cases are remitted for reconsideration in light of the detailed guidance provided by the Supreme Court. There is no dispute that homosexuals are protected by the Convention, membership of the relevant social group being defined by the immutable characteristic of its members sexuality [paras [6] and [10] per Lord Hope and para [42] per Lord Rodger]. To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord Rodger]. The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment. Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope]. Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger]. One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country on condition that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52] [53] and [65] per Lord Rodger]. The reasonable tolerability test applied by the Court of Appeal must accordingly be rejected [para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger]. There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues. In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger]. Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be applied by the lower tribunals and courts in determining claims for asylum protection based on sexual orientation.

Under the Mental Health Act 1983 (MHA) a Crown Court may impose upon a mentally disordered offender a hospital order together with a restriction order, if this is considered necessary to protect the public from serious harm. Such a patient is liable to indefinite detention and can only be discharged by the respondent Secretary of State or the First tier Tribunal (FtT). A discharge may be conditional, such that the patient remains subject to recall to hospital as well as to the conditions. The issue in this case is whether the conditions imposed can, if the patient consents, be so restrictive as to amount to a deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights. MM has a diagnosis of mild learning disabilities, autistic spectrum disorder and pathological fire setting. In 2001, when aged 17, he was convicted of arson offences. He was made the subject of a hospital order and a restriction order. Apart from a period of conditional discharge from December 2006 to April 2007, he has been detained in hospital ever since. He is considered to represent a serious risk of fire setting and of behaving in a sexually inappropriate way towards women. MM applied to the FtT for conditional discharge in May 2015. He was prepared to consent to a care plan that required him to live at a particular place, from which he would not be free to leave and would not be allowed out without an escort. The FtT ruled it had no power to impose conditions on discharge which themselves amounted to a deprivation of liberty. The Upper Tribunal held that it had, but the Court of Appeal held that it did not. MM appealed to the Supreme Court, arguing that if this condition cannot be imposed, he will have to remain in conditions of greater security in hospital, and the MHAs rehabilitative purpose will be frustrated. The Supreme Court by a majority of 4 to 1 (Lord Hughes dissenting) dismisses MMs appeal. It holds that the MHA does not permit either the FtT or the Secretary of State to order a conditional discharge of a restricted patient subject to conditions which amount to detention or a deprivation of liberty. Lady Hale (with whom Lord Kerr, Lady Black, and Lord Lloyd Jones agree) gives the main judgment. The Secretary of State has complete control over the conditions imposed on restricted patients and whether the patient should be recalled to hospital. The MHA does not specify what conditions may be imposed. In practice, the conditions usually require residence at a stated address and for both clinical and social supervision [11 12]. The purpose of conditional discharge is to enable the patient to make a safe transition from the institutional setting of a hospital to the community [14]. The word discharge in sections 42(2) and 73(2) MHA, when referring to the conditional discharge of restricted patients, must mean actual discharge from the hospital in which the patient is currently detained, as he remains liable to be detained [20]. Although there is nothing in the MHA which expressly prohibits a condition which amounts to a detention or deprivation of liberty in another setting, there are compelling reasons not to construe ss 42(2) and 73(2) in this way: It is difficult to see why the patients consent would be required for the exercise of a power to impose such a condition, yet all parties agree that consent is needed [30]. The power to deprive a person of his liberty is an interference with a fundamental right. The principle of legality means express language is required. Parliament was not asked to consider whether the general terms of ss 42(2) and 73(2) MHA included a power to impose a different form of detention, without prescribed criteria for such detention or, if imposed by the Secretary of State, any procedural safeguards [31]. As a practical matter, there is always a concern that the patients willingness to comply with the proposed condition is motivated more by his desire to get out of hospital and that he might then withdraw his consent and demand to be released. The patient would not be bound by his consent to comply with the condition [32]. Most compellingly, such a power would be contrary to the whole scheme of the MHA, which provides in detail for only two forms of detention (in a place of safety for up to 36 hours, or in a hospital), each with associated specific powers to convey a patient there, to detain him and to retake him if he absents himself from such detention without leave. There is no equivalent express power to convey a conditionally discharged restricted patient to the place where he is required to live or to detain him there, nor is he liable to be taken into custody and returned anywhere unless and until he is recalled to hospital by the Secretary of State [33 36]. The fact that a conditionally discharged restricted patient can apply far less frequently than a hospital patient to the FtT for his release indicates that Parliament did not consider that such patients might be subject to conditions which required the same degree of protection as those deprived of their liberty [37]. Accordingly, the MHA does not permit either the FtT or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient and MMs appeal is dismissed [38]. Lord Hughes, dissenting, would have held that the FtT did have the power, if it considered it right in all the circumstances, to impose conditions on the discharge of a restricted patient so long as the loss of liberty involved was not greater than that already authorised by the hospital and restriction orders. If the treatment of the patient had progressed to the point where the nature of the detention could be relaxed, it was plainly in the public interest that it should be, and he did not consider that the MHA prohibited such arrangements [39 49].

There are two appeals before the Supreme Court, both of which raise issues that are important to the international market in telecommunications. The appeals concern actions for infringement of UK patents said to be essential to the implementation of international standards for mobile telephony, such that it is not possible to make, sell, use or operate mobile phones and other equipment that is compliant with the standards without infringing the patents. Patents of this kind are called Standard Essential Patents (SEPs). The international standards in question are those set by the European Telecommunications Standards Institute (ETSI) for 2G (GSM), 3G (UMTS) and 4G (LTE). ETSI has over 800 members from 66 countries across five continents, and is recognised as the standard setting organisation in the European Union telecommunications sector. Amongst other things, it produces the technical standards needed to achieve a large unified European market for telecommunications, so that mobile phones and other telecommunications equipment can be used internationally. Once a standard has been adopted, there is a risk that owners of SEPs could disrupt the international telecommunications market by refusing to license their inventions or by charging excessively high royalties for their use. ETSI therefore requires its members to declare any patents which might be used in a telecommunications industry standard. Under its IPR Policy, ETSI then requires the SEP owner to give an irrevocable undertaking to license their patented technology on terms that are fair, reasonable and non discriminatory (FRAND). This gives those implementing the standards access to the technology protected by SEPs, while also providing the SEP owners with a fair reward for the use of their SEPs. The first appeal (the Unwired appeal) concerns an action brought by Unwired against Huawei for infringement of five UK patents which Unwired claimed to be SEPs. The SEPs in issue form part of a worldwide patent portfolio, which Unwired acquired from Ericsson. Unwireds business is licensing patents to companies who make and sell telecommunications equipment. Ericsson had previously licensed the relevant SEPs to Huawei, but the licence expired in 2012. In 2015 and 2016, three technical trials were held in which two of the SEPs were found to be both valid and essential. Two other SEPs were found to be invalid. Huawei has also been held to be infringing one or more of Unwireds SEPs in Germany, and its challenge to two of Unwireds patents in China has not succeeded. In the subsequent non technical trial, the judge held that Unwireds undertaking to license its SEPs on FRAND terms was justiciable and enforceable in the English courts. He also held that an implementer who refused to take a licence on terms which the court held to be FRAND exposed itself to an injunction for infringing a UK patent. In the circumstances, willing and reasonable parties would agree on a global license, which was the FRAND licence for a licensor with Unwireds patent portfolio and an implementer with almost global sales like Huawei. The judge went on to determine the royalty rates and other licence terms that he considered to be FRAND. The second appeal (the Conversant appeal) concerns an action brought by Conversant against Huawei and ZTE for infringement of four of its UK patents. These form part of a portfolio of about 2,000 patents and patent applications, covering 40 countries, which Conversant acquired from Nokia in 2011. Conversant argues that the portfolio includes 28 patent families which are SEPs. Like Unwired, Conversant is an intellectual property licensing company which licenses patents for royalty income. Huawei and ZTE applied for an order dismissing Conversants claims on the basis that the English courts did not have jurisdiction to determine the validity of foreign patents or, in the alternative, for a stay of proceedings on the ground that the English courts were not the appropriate forum for trying the case. The trial judge dismissed both applications. He held that the English courts had jurisdiction to enforce the undertaking made under ETSIs IPR Policy and to determine the terms of a FRAND licence. This did not intrude on the jurisdiction of foreign courts in relation to the validity or infringement of foreign patents, because the terms of any licenses determined by the English courts could be adjusted to reflect relevant rulings of foreign courts. The Court of Appeal upheld the trial judges orders in both the Unwired appeal and the Conversant appeal. Huawei and ZTE now appeal to the Supreme Court. The Supreme Court unanimously dismisses both appeals. The full Court gives the judgment, which confirms that the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a global license of a multi national patent portfolio. The appeals raise five issues, all of which are important to the international market in telecommunications [1]. Issue 1: The jurisdiction issue The jurisdiction issue arises in both appeals. The Supreme Court is asked to decide whether the English courts have jurisdiction and may properly exercise a power, without both parties agreement: (a) to grant an injunction to restrain the infringement of a UK patent that is a SEP unless the implementer of the patented invention enters into a global licence of a multi national patent portfolio; and (b) to determine the royalty rates and other terms of such a licence [49]. The Court finds that the English courts have jurisdiction and may properly exercise these powers. Questions as to the validity and infringement of a national patent fall to be determined by the courts of the state which has granted the patent. However, the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a license of a portfolio of patents which includes foreign patents [58]. The Court begins by considering Huaweis argument that, properly construed, ETSIs IPR Policy only permits the English courts to determine the terms of a license of UK SEPs and only where those SEPs have already been held by the English courts to be valid and infringed [54]. The Court rejects this argument on the basis that it runs counter to the aims of the IPR Policy and does not adequately take the wider context into account [59 60]. The Court also rejects Huaweis submission that the IPR Policy prohibits a SEP owner from seeking an injunction from a national court where it establishes that an implementer is infringing its patent. Rather, the possibility that a national court might grant an injunction is a necessary part of the balance which the IPR Policy seeks to strike, because it incentivises implementers to negotiate and accept FRAND terms for the use of the SEP owners portfolio [61]. Huawei argues that there is a clear distinction between the terms that operators might choose to agree voluntarily as part of a commercial negotiation and the terms that can be imposed on them by the courts [53]. The Court rejects this distinction. It finds that the IPR Policy envisages both that the courts may decide whether or not the terms of an offered licence are FRAND and that the courts should look to and draw on commercial practice in the real world when making this assessment [62]. The Court goes on to disagree with Huaweis submission (at [51]) that the English courts do not have jurisdiction to determine the terms of a licence of disputed (or potentially disputed) foreign patents. In the present appeals, the lower courts did not attempt to rule on the validity or infringement of foreign patents, which would have been beyond their jurisdiction. Instead, they looked to the industry practice of taking a license of a portfolio of patents and construed ETSIs IPR Policy as promoting that behaviour [63]. If an implementer is concerned about the validity and infringement of particularly significant patents in a portfolio, it could seek to reserve the right to challenge those patents and to require that the royalties payable under the licence should be reduced if the challenge is successful [64 65]. The Court also disagrees with Huaweis submission (at [52]) that the approach of the English courts is out of step with that of foreign courts [66]. It finds that the trial judges approach in the Unwired appeal is consistent with several judgments in other jurisdictions, which contemplate that, in an appropriate case, the courts would determine the terms of a global FRAND licence [67 84]. The Court also dismisses Huaweis argument (at [55]) that it is improper for an English court to exclude Huaweis products from the UK market by exercising a discretion to grant an injunction in respect of an infringement of a SEP [85 90]. Issue 2: The suitable forum issue The suitable forum issue arises in the Conversant appeal only. It has two limbs. The first limb asks whether the High Court should have: (a) set aside service of Huawei and ZTE out of jurisdiction; and (b) permanently stayed the proceedings as against the English subsidiaries of Huawei and ZTE on the basis that China was a more suitable forum for hearing the dispute than England [92]. The suitable forum (or forum conveniens) doctrine requires the English court to decide whether it or a suggested foreign court with jurisdiction would be the more suitable forum for determining the dispute between the parties [94]. Huawei and ZTE argue that the Chinese courts would be a more suitable forum for determining their dispute with Conversant. However, the Court holds that this argument must fail because the Chinese courts do not currently have the jurisdiction needed to determine the terms of a global FRAND licence, at least, without all parties agreement that they should do so. In contrast, the English court has jurisdiction to do this [96 97]. The second limb, which the Court labels case management, is whether the English proceedings should be stayed temporarily until the Chinese proceedings challenging the validity of Conversants Chinese patents have been concluded [92]. The Court finds that the Court of Appeal was right to refuse any case management solution [103 104]. Issue 3: The non discrimination issue The non discrimination issue arises in the Unwired appeal and relates to the requirement that license terms must be non discriminatory. Huawei argues that the non discrimination limb of the FRAND undertaking is hard edged, which means that like situations must be treated alike and different situations differently. SEP owners like Unwired must therefore grant the same or similar terms to all licensees, unless it can be shown that there are objective reasons for treating them differently. Accordingly, Unwired should have offered Huawei a licence with a worldwide royalty rate which was as favourable as those it had previously agreed with Samsung [105 106]. The Court holds that Unwired had not breached the non discrimination limb of the FRAND undertaking [112]. ETSIs IPR Policy requires SEP owners, like Unwired, to make licenses available on fair, reasonable and non discriminatory terms and conditions. This is a single, composite obligation, not three distinct obligations that the licence terms should be fair, and separately, reasonable, and separately, non discriminatory [113]. The non discriminatory part of the undertaking indicates that, to qualify as FRAND, a single royalty price list should be available to all market participants. This must be based on the market value of the patent portfolio, without adjustment for the characteristics of individual licensees [114]. However, there is no requirement for SEP owners to grant licences on terms equivalent to the most favourable licence terms to all similarly situated licensees. Indeed, ETSI previously rejected proposals to include a most favourable licence term of this kind in the FRAND undertaking [116 119]. Issue 4: The competition issue In the Unwired appeal, Huawei argues that Unwireds claim for an injunction should be regarded as an abuse of its dominant position, contrary to Article 102 of the Treaty on the Functioning of the European Union. This is because Unwired has failed to comply with the guidance given by the Court of Justice of the European Union in Huawei v ZTE (Case C 170/13), since it did not make a FRAND licence offer before issuing proceedings for injunctive relief. Huawei argues that, as a result, Unwireds remedy should have been limited to damages [128 129]. The Court considers Article 102 [131], Huawei v ZTE [132 143], the facts of the present case [144 145] and the decisions of the trial judge and the Court of Appeal [146 148]. It confirms that bringing an action for a prohibitory injunction without notice or prior consultation with the alleged infringer will infringe Article 102 [150]. However, the nature of the notice or consultation required will depend on the circumstances of the case: there is no mandatory requirement to follow the protocol set out in Huawei v ZTE. On the facts, what mattered was that Unwired had shown itself to be willing to grant a licence to Huawei on whatever terms the court decided were FRAND. Unwired had not therefore behaved abusively [151 158]. Issue 5: The remedies issue In both appeals, Huawei argues that, even if it is infringing Unwired and Conversants SEPs, the court should not have granted an injunction to stop the continuing infringement. Instead, the more appropriate and proportionate remedy would be for the court to award the claimants damages, based on the royalties which would reasonably be agreed for a licence of the infringed UK patents [159]. The Supreme Court rejects this argument. It holds that there is no basis on which the Court could properly substitute an award of damages for the injunction granted in the Unwired appeal and upheld by the Court of Appeal [163]. There is no risk that Unwired or Conversant could use the threat of an injunction as a means of charging exorbitant fees, since they cannot enforce their rights unless they have offered to license their SEPs on terms which the court is satisfied are FRAND [164 165]. Moreover, an award of damages would not be an adequate substitute for an injunction [166 169].

In deciding whether to institute criminal proceedings, the Crown Prosecution Service (CPS) is required to apply a two stage test. They must first consider whether there is enough evidence to provide a realistic prospect of conviction and, if that is satisfied, decide whether the prosecution would be in the public interest [3]. Under section 25(1) of the Identity Cards Act 2006 (2006 Act) it was an offence for a person to be in possession of an identity card relating to someone else, with the intention of using it to establish his or her identity as that persons identity. However, it is recognised that individuals fleeing persecution may have to resort to the use of false papers to make good their escape. Therefore, under section 31 of the Immigration and Asylum Act 1999 (section 31) (which gives effect to Article 31(1) of the 1951 Convention and Protocol Relating to the Status of Refugees (the Refugee Convention)) it is a defence for a refugee charged under section 25 of the 2006 Act if he came to the UK directly from a country where his life or freedom was threatened and inter alia made a claim for asylum as soon as was reasonably practicable. Directly has been given a purposive interpretation, so that the defence is not excluded by a short term stopover in an intermediate country [5 7]. The appellant was born in Somalia. She is the member of a minority clan. She and her family suffered severe violence from majority clans over the years; both her mother and father were murdered and the appellant was raped and severely beaten. In December 2008, the appellant fled Somalia to Yemen. A year later she left Yemen and travelled to Holland. On 27 December, she flew from Holland to the UK on a false passport. She was challenged by the UK Border Agency on arrival and immediately claimed asylum. The following day, after an initial asylum screening interview, she was arrested on suspicion of committing an offence under section 25(1) of the 2006 Act. The CPS concluded that both the evidential and public interest tests were satisfied. The appellant was remanded in custody. During this time, another CPS lawyer reviewed the appellants case. She considered the section 31 defence but decided it was not available to the appellant because of the year the appellant had spent in Yemen. On 1 June 2010, the appellant appeared before the Crown Court. However, the proceedings were adjourned as a decision on the appellants asylum application was expected shortly and was thought likely to be granted. After the hearing the CPS advocate researched the position of Somali refugees in Yemen and found that although Yemen is a party to the Refugee Convention its procedure for bringing it into effect was poor. The CPS advocate concluded that, subject to the grant of asylum, the prosecution of the appellant should not continue as it was not in the public interest. On 10 June 2010, the appellant was granted asylum. The following day the prosecution offered no evidence at a mention hearing at the Crown Court. The appellant was found not guilty and released from custody [8 20]. The appellant brought proceedings against the CPS, the Home Office and the police for damages on various grounds including a breach of her rights under article 8 of the European Convention on Human Rights (the Convention). The claims against the Home Office and the police were not pursued. The High Court dismissed the appellants claim against the CPS. The decision to prosecute could only engage article 8 if the prosecution targeted an activity which could credibly claim to be an exercise of an article 8 right. Presenting an immigration officer with false papers was not an activity that formed part of the appellants private life [22]. The Court of Appeal upheld the High Courts decision [23]. The Supreme Court unanimously dismisses the appeal. Lord Toulson, with whom Lord Mance, Lord Reed and Lord Hughes agree, gives the lead judgment. Lord Kerr gives a concurring judgment. Although article 8 is broad, it is not so broad as to encompass everything done by a public authority which has the consequence of affecting someones private life in a more than minimal way [25 26]. Neither the Strasbourg authorities nor domestic case law supports the contention that the institution of criminal proceedings, for a matter which is properly the subject of the criminal law and for which there is sufficient evidence, may be open to challenge on article 8 grounds. It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with article 8 rights. However, if it does not amount to an unjustifiable interference, then neither does the decision to prosecute for that conduct [31 32]. In this case the decision which is challenged is the initial decision to prosecute. However, it is accepted that the offence under section 25 of the 2006 Act is compliant with Convention rights and it was conceded in the courts below that the CPS was reasonably entitled to consider that the evidential test was satisfied at the time when the decision to prosecute was taken. It is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that persons human rights. It does not matter that prosecution is not obligatory in the UK; whether it is in the public interest to prosecute is not the same as whether a prosecution would breach an individuals article 8 rights [34]. Article 8 is therefore not applicable to the decision to prosecute [35]. The CPS can be criticised regarding the length of time taken to conclude that the appellants section 31 defence would succeed. However, even if article 8 was applicable, this would not amount to a breach in the decision to prosecute. Even if the original decision to prosecute was an error of judgment by the CPS this would not have breached article 8. It would be different if the the state had deliberately trumped up false charges. However, this would involve the torts of malicious prosecution and/or misfeasance in public office, to which article 8 would add nothing [36]. A decision to prosecute does not itself involve a lack of respect for the autonomy of the defendant but places the question of determining his or her guilt before the court [38]. Lord Kerr raises the possibility that the continuation of the decision to prosecute beyond the time that it should have been recognised that the appellant had an answerable defence under section 31 constituted an interference with the appellants freedom of liberty under article 5 of the Convention and article 8 rights [41 46]. However, argument was not heard on these questions. Lord Kerr therefore also dismisses the appeal. The decision to prosecute did not amount to a breach of article 8 in circumstances where it was accepted there was an evidential basis for prosecuting the appellant at the time of that decision [47].

These were proceedings brought by the Financial Conduct Authority (FCA) against Asset Land Investment plc and associated parties (Asset Land) and its principal owner and director Mr Banner Eve, alleging they had carried on a of regulated activities without authorisation, namely the operation of collective investment schemes, contrary to section 19 of the Financial Services and Markets Act 2000 (FSMA). The activities related to sales of individual plots at six possible development sites in various parts of the United Kingdom. Asset Land divided the sites into plots which they sold to investors, representing that it would be responsible for seeking rezoning for residential development and for arranging a sale to a developer. The High Court held that in the circumstances this amounted to operating a collective investment scheme. The Court of Appeal upheld the decision. Asset Land and Mr Banner Eve appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal by Asset Land and Mr Banner Eve, finding that Asset Lands activities amounted to operating collective investment schemes under section 235 FSMA, and were thus regulated activities for the purpose of section 19. Lord Carnwath gives the lead judgment. Lord Sumption gives a concurring judgment. Section 235 FSMA concerns collective investment schemes constituting by arrangements respecting property which enable participants to receive profits or income arising from the acquisition, holding, management or disposal of the property. To fall within section 235 the participants in the scheme must not have day to day control over the management of the property, and the property must be managed as a whole by or on behalf of the operator of the scheme. Lord Carnwath addresses the four principle grounds of appeal raised by the Appellants. Ground 1 was that the Court of Appeal erred in its identification of the component parts of the arrangements, and gave inadequate weight to an essential feature, namely that each investor intended to, and did own his plot(s) outright. Lord Carnwath rejects the Appellants distinction between the arrangements made by the operator and how they were perceived by others as artificial and unrealistic. He finds that the judge was entitled to take the view that the investors understandings conformed to what was intended by the operator, and was not required to give special weight to contractual or other documents, without regard to their context [54]. Ground 2 was that the court erred in treating the property under section 235(2) and (3) as each of the sites acquired by the company, rather than the aggregate of all the plots sold to individual investors, and should have held that the arrangements left investors with the necessary control. Ground 3 argued that that the critical question under section 235(3)(b) was whether the arrangements reserved to the investor the final decision as to the exploitation of the property pursuant to the arrangements, the correct answer to which was yes. Lord Carnwath deals with Grounds 2 and 3 together, finding that the relevant property for the purposes of section 235(1) is the whole site, but that management control of the property under section 235(2) and (3) may be achieved in different ways, and may not be by legal mechanisms or legal control. Have control in subsection 2 refers to the reality of how the arrangements are to be operated [57 59]. Lord Carnwath holds that the judge was entitled to find that the relevant management of the property as a whole comprised the steps necessary to obtain planning permission and secure a sale to a developer, and it was no part of the arrangement that the investors should have any part in or control over those management activities [60]. Ground 4 was that the courts interpretation would potentially interfere with a wide range of legitimate business arrangements which should not be characterised as collective investment schemes. Lord Carnwath finds that no issue arises, as the judges application of section 235 on the facts as found by him involved no distortion of its natural meaning or intended purpose [63]. Lord Sumption reviews the policy underlying the regulation of collective investment schemes. He finds that whether a scheme is a collective investment scheme depends on what was objectively intended at the time the arrangements are made, and not on what later happens [91]. The essence of such a scheme is a lack of legal or practical control by the investor of the profit generating investment which is the subject of the scheme. The investor exchanges property over which he has entire dominion for units in a larger property over which he has more limited rights. A distinction must therefore be made between (i) cases where the investor retains entire control of the property and simply employs the services of an investment professional (who may or may not be the person from whom he acquired it) to enhance value; and (ii) cases where he and other investors surrender control over their property to the operator of a scheme so that it can be either pooled or managed in common, in return for a share of the profits generated by the collective fund. He holds that the judge was right to say that the mutual understanding based on the core representations made by Asset Land to the investors constituted arrangements under section 235, and that so far as the contract, disclaimer and publicity material were inconsistent with those representations, they were not part of the arrangements [92]. The core representations were consistent only with the property the subject of the arrangements being the whole of a site. It was the whole site which was to be rezoned and sold to a developer, and the profit which each investor would derive would be derived from an aliquot share of the entire sale price for the site [93]. As to day to day control, the question must be in whom would control be vested were control to be required, section 235(2) must refer to the control exercisable by the investors collectively. The investors collectively did not have the relevant control of the management of the whole sites because common parts were retained by Asset Land [94 95]. That left as the critical question whether the property was managed as a whole. That depended on whether, objectively, the functions which the arrangements assigned to Asset Land after the investors acquisition of his plot constituted management of the site [97]. The transaction cannot be viewed only in legal terms, and the judge found that the dominion of the investors over their plots was in reality an illusion. This was a factual assessment by the judge and it is not right for this court to substitute a different view. On this narrower ground, Lord Sumption agrees that the schemes are collective investment schemes [102].

This appeal concerns the extent to which a non member state national, who is the parent of a dependent European Union (EU) citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano v Office national de l'emploi (Case C 34/09) [2012] QB 265 (the Zambrano principle, and a person protected pursuant to it a Zambrano carer). The issue is whether a Zambrano carer enjoys enhanced protection, such that she can only be deported in exceptional circumstances. Ms Robinson is a Jamaican national. She was convicted and imprisoned of a serious criminal offence in the UK of dealing in cocaine and subsequently made the subject of a deportation order. Prior to her removal, she gave birth to a boy, D who is a British national and an EU citizen. Ms Robinson thereafter applied for leave to remain. The Secretary of State refused that application. That is the decision which is the subject of these proceedings. On appeal to the Upper Tribunal, Ms Robinson argued that she had a right to reside in the EU derived under the Zambrano principle from Ds rights as an EU citizen. As she was Ds effective carer, her removal would require D to accompany her to Jamaica. D would thereby be deprived of the enjoyment of his rights as an EU citizen. The Upper Tribunal agreed. It held that her protection from deportation was absolute. The Secretary of State appealed to the Court of Appeal. Before the appeal was heard, the Court of Justice of the EU (the CJEU) delivered judgment in two cases which restricted the extent of the Zambrano principle. In S v Secretary of State for the Home Department (Case C 304/14) [2017] QB 558, (CS), it held that in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine (para 50). On that basis, the Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for redetermination. The Court of Appeal held that the phrase exceptional circumstances in CS was not an additional requirement which the state must satisfy, but merely summarised an exception to the general rule that D, an EU citizen, cannot be compelled to leave the territory of the EU. Ms Robinson appeals to the Supreme Court contending that the phrase created an additional hurdle to deportation. The Supreme Court unanimously dismisses the appeal and holds that the phrase exceptional circumstances does not import an additional hurdle before a Zambrano carer can be deported from the territory of the EU. The case is remitted to the Upper Tribunal for redetermination on that basis. Lord Stephens gives the judgment, with which all members of the Court agree. The Zambrano principle applies in very specific situations where, if a third country (ie non member state) national were not given a right to reside in the EU, a dependent EU citizen would be forced in practice to leave the territory of the EU. The EU citizen would then be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship [42] [43]. The right of residence of a Zambrano carer therefore derives from the rights of the dependent EU citizen. It flows from article 20 of the Treaty on the Functioning of the EU [1], which establishes EU citizenship. The CJEU has recognised the significance of EU citizenship, while confirming that it is subject to limitations [31]. The United Kingdoms withdrawal from the EU has no impact on this appeal, but the legal principles to be applied may change after 31 December 2020 [30]. The case law of the CJEU shows that a national court must consider three questions. The first question is to determine whether a third country national has a right of residence under the Zambrano principle. If a right of residence is established, then the second and third questions address whether the third country national can still be deported. Accordingly, the first question is whether there is a relationship of dependency between the third country national and the EU citizen, such that the EU citizen would be forced to accompany the third country national and leave the territory of the EU as a whole [44]. The second question is whether the third country nationals conduct or offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society of the host member state, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting them from the member state [45]. The third question arises if there is such a threat and requires the national court to carry out a balancing exercise. Against the nature and degree of the threat, it must balance the fundamental rights which the CJEU recognises as relevant in this context: in particular, the right to respect for private and family life in article 7 of the Charter of Fundamental Rights of the European Union. In a case involving children, account is to be taken of the childs best interests, and particular attention must be paid to their age, situation in the member state concerned, and the extent to which they are dependent on their parent. The national court must ensure that the principle of proportionality is observed [46]. The CJEU derived these limitations on the Zambrano principle from some of the language in articles 27 and 28 of Parliament and Council Directive 2004/38/EC (the Directive) [32] [37]. Ms Robinson argues that the CJEUs use of the phrase exceptional circumstances in CS demonstrates that the interests of a child of a Zambrano carer must carry great weight and can only be outweighed by particularly compelling circumstances. She relies on the Advocate Generals opinion in CS that deportation of a third country parent could only be justified in exceptional circumstances based on an on imperative reason relating to public security (CS, AG Opinion para 177) [47] [50]. The Supreme Court holds that the CJEU did not adopt the Advocate Generals proposed test. In CS, the CJEU recognised an exception to the Zambrano principle linked, in particular, to upholding the requirements of public policy and safeguarding public security (CS, para 36). That is inconsistent with an imperative grounds test [51], derived from article 28 of the Directive, which the CJEU did not incorporate into the exception to the Zambrano principle [36]. Viewed in context, the CJEUs reference to exceptional circumstances in CS simply explains that, in the prescribed circumstances, an exception can be made to the rule that a Zambrano carer cannot be compelled to leave EU territory [57]. The CJEU repeated this formulation of the test in Rendn Marn v Administracin del Estado (Case C 165/14) [2017] QB 495 [58] and in KA v Belgische Staat (Case C 82/16) [2018] 3 CMLR 28 [59]. Not once in any of these cases did the CJEU state that the imperative grounds test applies, or that there is an additional hurdle of exceptional circumstances before a Zambrano carer can be deported [60].

Section 64 of the Police and Criminal Evidence Act 1984 (PACE) required the destruction of samples or fingerprints taken from a person in connection with the investigation of an offence if he was cleared of that offence. Section 64(1A) of PACE, enacted by section 82 of the Justice and Police Act 2001 (the 2001 Act), replaced that statutory obligation to destroy data with a discretion. Section 64(1A) provides that samples taken in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken. Section 64(1A) was supplemented by guidelines issued by the Association of Chief Police Officers (ACPO). These guidelines provided that data should be destroyed only in exceptional cases. The polices retention policy was challenged in R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 (Marper UK). The claimants argued that the retention by the police of their finger prints and DNA samples was incompatible with article 8 of the European Convention on Human Rights (the ECHR). The majority of the House of Lords held that retention did not constitute an interference with the claimants article 8 rights and they held unanimously that in any event any such interference was justified under article 8(2). However, in 2008, the European Court of Human Rights (ECtHR) disagreed: see S and Marper v United Kingdom (2008) 48 EHRR 50 (Marper ECtHR). It found the indefinite retention of data to be an interference which was not justified under Article 8(2). The Governments immediate response was to remove children under the age of 10 from the database. They then opened a consultation period to consider the appropriate legislative reform. This resulted in legislation which, following the change of government in May 2010, was not brought into force. The Coalition Government is promoting new legislation to take account of the ECtHRs judgment. In December 2007, GC was arrested on suspicion of common assault on his girlfriend. He denied the offence. A DNA sample, fingerprints and photographs were taken after his arrest. On the same day he was released on police bail without charge and was subsequently informed that no further action would be taken. In March 2009, C was arrested on suspicion of rape, harassment and fraud. His finger prints and a DNA sample were taken. He denied the allegations. He was charged in respect of the rape allegation but no further action was taken in respect of the harassment and fraud allegations. In the Woolwich Crown Court in May 2009, the prosecution offered no evidence and C was acquitted. In both cases, the appellants requested the destruction of the data taken. Their requests were refused as there were no exceptional circumstances within the meaning of the ACPO guidelines. The appellants issued proceedings for judicial review of the retention of their data on grounds that, in light of Marper ECtHR, its retention was incompatible with their article 8 rights. In the circumstances, the Divisional Court (Moses LJ and Wyn Williams J) dismissed the applications for judicial review and granted a certificate that the cases were appropriate for a leapfrog appeal to the Supreme Court: [2010] EWHC 2225 (Admin). The Supreme Court, by a majority, allows the appeals (Lords Rodger and Brown dissenting). Lord Dyson gives the lead judgment. The majority grant a declaration that the present ACPO guidelines are unlawful because they are incompatible with article 8 of the ECHR. They grant no other relief. Interpretation of section 64(1A) of PACE It is common ground that Marper UK should be overruled. It is also agreed that in light of Marper ECtHR, the indefinite retention of the appellants data under the current retention policy is a breach of article 8 ECHR. The only issue in these appeals, therefore, is what the court should do about that in the present circumstances. Section 3 of the Human Rights Act 1998 (HRA) requires the court, insofar as it is possible to do so, to interpret legislation in a way which is compatible with Convention rights. It is uncontroversial that the statutory purpose of section 64(1A) was to remove the requirement to destroy data after it had served its immediate purpose so as to create a greatly extended database. The extended database was to facilitate the prevention of crime, the investigation of offences and the conduct of prosecutions. However, this does not mean that Parliament intended that, save in exceptional circumstances, the data should be retained indefinitely. Rather, Parliament conferred a discretion on the police to retain data. The natural meaning of the word may in section 64(1A) is permissive not mandatory. There is no reason to suppose that Parliament must have intended its statutory purpose to be achieved in a disproportionate way so as to be incompatible with article 8: [23] [24], [88] [89]. The police were entrusted with setting out the precise means of achieving the statutory purpose: [26]. There is no reason in principle why the police, with the input of the Secretary of State, should be less well equipped than Parliament to create guidelines for the exercise of this power: [40] [44]. Accordingly, it is possible to read section 64(1A) in a way which is compatible with article 8 ECHR as interpreted in Marper ECtHR. A declaration of incompatibility is not appropriate and section 6(2)(b) of the HRA is not engaged: [35], [55], [69]. Lords Rodger and Brown dissent. They would have dismissed the appeals. In their view, the history shows that Parliament's purpose in enacting section 64(1A) was to ensure that in future samples taken from suspects would be retained indefinitely: [94] [97]. Therefore, the police had no choice but to retain the data: [108] [109]. In their view, it is not possible to interpret section 64(1A) in accordance with section 3 HRA: [115], [146] [147]. However, since the police could not have acted differently in substance, what they did and what they continue to do, falls within section 6(2)(a) or section 6(2)(b) HRA and is lawful: [119]. Appropriate relief The present intention of the government is to bring the new legislation into force later this year. In these circumstances, in relation to biometric data it is sufficient to grant a declaration under section 8(1) HRA that the present ACPO guidelines are unlawful because they are incompatible with the ECHR. Where Parliament is seised of the matter, it is not appropriate to make an order requiring a change in the legislative scheme within a specific period or an order requiring destruction of data: [45] [49], [73], [91] [92]. It is, however, open to ACPO to reconsider and amend the guidelines in the interim: [73], [81], [90]. Lord Rodger would have preferred to grant a declaration of incompatibility under section 4 HRA: [121]. In relation to the photographs of GC, in view of the manner in which the issue was raised in the Divisional Court and the consequent lack of any substantive judgment, the Supreme Court expresses no opinion on this part of the appeal: [50] [51].

This appeal concerns the question of whether the Respondent Royal Borough acted unlawfully in seeking to amend the Appellants care package by substituting her night time carer with provision of incontinence pads or absorbent sheets (hereafter pads) when the Appellant is not in fact incontinent. In September 1999, the Appellant, Ms McDonald, suffered a stroke leaving her with severely limited mobility. She also suffers from a small and neurogenic bladder which makes her have to urinate some two to three times a night. Up to now she has dealt with this by accessing a commode with the help of a carer provided by the Respondent Royal Borough as part of her care package. In November 2008, however, the Respondent proposed instead that the appellant should use pads, avoiding the need for a night time carer and thereby providing her with greater safety (preventing the risk of injury whilst she as assisted to the commode), independence and privacy and in addition reducing the cost of her care by some 22,000 per annum. It is this decision the Appellant is seeking to challenge, maintaining that the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity. In the High Court, the deputy judge dismissed Ms McDonalds arguments and held that it was open to the Respondent to meet Ms McDonalds need, identified in the Needs Assessment dated 2 July 2008 as assistance to use the commode at night, in a more economical manner by provision of pads. The Court of Appeal disagreed holding that the clear language of the Needs Assessment could not be extended in a way proposed by the deputy judge and that at the time when proceedings were commenced the Respondents were in breach of their statutory duty. However, since the Respondents decision to amend the care package was not in fact put into operation, and since the need had been reassessed in the Care Plan Reviews of November 2009 and April 2010 as the appellants night time toileting need, the Appellant had no substantial complaint. In the Supreme Court, the Appellant put her argument against the Respondents decision on four separate basis: (i) the 2009/2010 Care Plan Reviews did not in fact contain a reassessment of her needs; (ii) the decision breached Ms McDonalds rights under article 8 of the European Convention on Human Rights (article 8); (iii) the decision was taken in breach of section 21 of the Disability Discrimination Act 1995 (DDA); and (iv) the Respondents failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the DDA (now superseded by comparable provisions in the Equality Act 2010). The Supreme Court, by a majority of 4 1, dismissed the appeal. The lead judgment was given by Lord Brown. Lord Dyson gave a separate concurring judgment. Lord Walker agreed with Lord Brown and Lord Dyson, delivering a short opinion on the point raised by Lady Hale in her dissenting opinion. Lord Kerr agreed with the majoritys conclusion but for different reasons on issue 1. Lady Hale gave a dissenting judgment for the Appellant on a point that, although not taken by the Appellant, was raised in Age UKs intervention. Issue 1 the 2009/2010 Care Plan Reviews The court agreed with Rix LJs conclusion in the Court of Appeal. In accordance with the Fair Access to Care Services (FACS) Guidance issued by the Secretary of State, the Care Review Plans could and in fact did incorporate a review of Ms McDonalds needs: [12], [52]. Care plan reviews are usually drafted by social workers rather than lawyers and thus should be construed in a practical way: [53]. Given the history of consultation in this case, the Respondent complied with the relevant FACS Guidance: [13], [55]. Lord Kerr agreed with the majority but on a narrower basis. Although the Respondent did not intend to carry out a re assessment of the Appellants needs in the 2009/2010 Care Plan Reviews, in fact the exercise then conducted yielded sufficient information to allow the court to conclude that the Appellants needs could be properly re cast: [38]. In this context, the definition of needs includes the means by which those needs are to be met: [40]. Issue 2 Article 8 The Appellant could not establish interference with her article 8 rights. The Respondent respected Ms McDonalds dignity and autonomy, allowing her to choose the details of her care package. Even if article 8 interference were established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well being of the Respondent Royal Borough and the interests of its other service users and (b) a proportionate response to the Appellants needs by affording her greater privacy and protection from injury: [19]. Issue 3 section 21 of the DDA Under section 21 of the DDA, the Respondent may not operate any practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them. The Appellant failed to show that the Respondents decision could properly be characterised as a practice, policy or procedure and thus the Respondent did not breach its section 21 duty. Even if that were not so, the Respondents acts would have been justified as constituting a proportionate means of achieving a legitimate aim within the meaning of section 21D(5): [22]. Issue 4 section 49A of the DDA Where the public authority is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, it may be entirely superfluous to make express reference to section 49A of the DDA. It would be absurd on the facts of the present case to infer a breach of section 49A of the DDA from an omission to refer to that section in any of the Respondents documentation: [24]. Issue 5 section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (CSDPA) Lady Hale would have allowed Ms McDonalds appeal on a different basis outlined by Age UK in its intervention, namely that it was Wednesbury irrational for the Respondent Royal Borough to characterise the Appellant as having a need different from the one she in fact has: [78]. Under section 2(1) of the CSDPA disabled people have a right to practical assistance from their local authority to meet their needs. In complying with section 2(1) the local authority has to answer rationally the following two questions: (i) what are the needs of the disabled person and (ii) what is necessary to meet those needs: [69]. It is clear that the need for help to get to the commode is so different from the need for protection from uncontrollable bodily functions that it is irrational to confuse the two, and meet the one need in the way that is appropriate to the other: [75].

Mr Rahmatullah, a Pakistani citizen, was transferred to US forces after being detained by British forces in February 2004 in an area of Iraq under US control. Shortly after that, the UK authorities became aware that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it. By June 2004 UK officials knew that Mr Rahmatullah was no longer in Iraq. He had been taken to Afghanistan and was being held in a detention facility in Bagram Air Field and there he has remained. On 15 June 2010 the recommendation of a detainee review board of the US army that Mr Rahmatullah be released was approved by a senior officer but this has not taken place. On 23 March 2003 a Memorandum of Understanding regarding the transfer of those captured in the fighting in Iraq was signed on behalf of the armed forces of the US, UK and Australia (the 2003 MOU). The 2003 MOU was to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4). The 2003 MOU provided that any prisoners of war, civilian internees, and civilian detainees transferred by the UK would be returned by the US to the UK without delay upon request by the UK (clause 4). It also provided that the removal of transferred prisoners of war away from Iraq would only be made by agreement between the UK and the US (clause 5). The 2003 MOU was not legally binding. It was a diplomatic agreement between the countries concerned. The Divisional Court refused an application made on Mr Rahmatullahs behalf for a writ of habeas corpus requiring his release. On appeal, the Court of Appeal allowed Mr Rahmatullahs appeal and issued a writ of habeas corpus requiring the UK to seek his return or at least demonstrate why it could not. The Secretary of State requested the US authorities to return Mr Rahmatullah. A letter was received in response from the US deputy assistant Secretary of State for Defense. The US authorities did not agree to return Mr Rahmatullah to the UK. The letter stated that the US had already received a request from the Government of Pakistan for Mr Rahmatullah's repatriation, and that they considered it to be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan. The Court of Appeal found that this letter was a sufficient response to the writ of habeas corpus and that was the end of the matter. The Secretary of State appealed the decision of the Court of Appeal to issue the writ of habeas corpus and Mr Rahmatullah cross appealed the decision that the response by the US was sufficient to demonstrate that the UK could not secure his release. The Supreme Court unanimously dismisses the appeal of the Secretary of State and by a majority of 5 2 (Lady Hale and Lord Carnwath dissenting) dismisses the cross appeal of Mr Rahmatullah. Lord Kerr gave the leading judgment with which Lord Dyson and Lord Wilson agreed. The UK does not need to have actual custody of Mr Rahmatullah to exercise control over his release as habeas corpus is a flexible remedy [42 43]. It is sufficient for the issuing of a writ of habeas corpus that there was material before the court suggesting that there was a reasonable prospect of the UK obtaining his release, OBrien [1923] AC 603 applied [46 48, 64]. The fact that the 2003 MoU was not legally binding does not reduce its significance. The UK needed the agreement to show that it had effectively ensured that the Geneva Conventions (GC) would be complied with. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US [8 11]. The assertion by a witness for the Secretary of State that it would be futile to request Mr Rahmatullahs return was not supported by any evidence. Such a claim was surprising given the nature and terms of the 2003 MoU [15]. Although the legality of Mr Rahmatullahs detention did not need to be determined for the purposes of this appeal, there was clear prima facie evidence that he is detained unlawfully under the GC. The UK was under a duty to ensure that Mr Rahmatullah was not being held in breach of the GC or to request his return [22 40]. The issue of the writ was not an instruction to the Government to act in any particular way or to engage in diplomacy. It merely reflected the fact that there were sufficient grounds for believing that the UK Government could obtain control over the custody of Mr Rahmatullah. What was required of them was to show whether or not control existed in fact [60]. The decision to issue the writ did not entail any intrusion in the area of foreign policy [68]. On the cross appeal; the letter sent by the US authorities, while not explicitly referring to the 2003 MoU, did not suggest that it had not been considered. The US authorities had a copy of the Court of Appeals decision and were aware of the basis upon which it was made. It was clear from their response that the US authorities felt they were holding Mr Rahmatullah lawfully and were not willing to relinquish control of his detention to the UK [83 84]. Lord Phillips gives a short concurring judgment agreeing that there was sufficient evidence to suggest that the UK may be able to exert control over Mr Rahmatullah to issue the writ. He also considered that the issues of whether it mattered that Mr Rahmatullah had been handed over lawfully by the UK in the first place and whether Mr Rahmatullah could invoke in domestic proceedings the obligations of the UK under the Geneva Conventions had not been resolved in this case [100 107]. Lord Reed gives a concurring judgment. He agrees with Lord Kerr that the appeals should be dismissed but on the narrower ground that there was sufficient uncertainty as to whether the UK authorities had control of Mr Rahmatullahs detention to justify the issue of the writ [111 114]. Lady Hale and Lord Carnwath give a short joint judgment concurring with the majority in relation to the Secretary of States appeal but dissenting on the cross appeal. The basis for issuing the writ was the UKs apparent control provided by the 2003 MoU, supported by the UKs continuing responsibility as detaining authority under the Geneva Conventions (GC4). The UK Government did not make it clear to the US that it had an unqualified right under Clause 4 of the 2003 MoU to require Mr Rahmatullahs return. The US response similarly failed to deal with that central issue. In these circumstances, Lady Hale and Lord Carnwath found, the court should not rest on an inconclusive response, but should require resubmission of the request in firmer terms by the UK [125 131].

This is a pre trial appeal in a criminal case. The appellants are charged with the offence of entering into funding arrangements connected with terrorism, contrary to section 17 of the Terrorism Act 2000. The charges allege that the appellants sent money overseas, or arranged to do so, when they knew or had reasonable cause to suspect that it would, or might, be used for the purposes of terrorism. The question which arises on this appeal concerns the correct meaning of the expression has reasonable grounds to suspect in section 17(b) of the Act. The appellants argued that it means that the accused must actually suspect, and for reasonable cause, that the money may be used for the purposes of terrorism. The Crown, in response, argued that the sections wording means it is sufficient that on the information known to the accused there exists, assessed objectively, reasonable cause to suspect that the money will be put to that use. The Court of Appeal accepted the Crowns contention. The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the sole judgment with which the other justices agree. The appellants relied on the well established principle that whenever a statutory section creates a criminal offence but does not refer to the offenders state of mind (mens rea), there is a presumption that to give effect to the will of Parliament, the court must read in words requiring mens rea [8]. While it is an important principle, it is a principle of statutory construction. It does not empower the court to substitute the plain words used by Parliament for a different provision on the grounds that the court would have done so differently by providing for an element, or a greater element, of mens rea [9]. The presumption must give way to either the plain meaning of the words of the statute, or to other relevant pointers to meaning which clearly demonstrate what was intended. The first port of call for any issue of construction is the words of the Act [12]. The words of section 17(b) of the Act suggest an objective test for mens rea at first sight. Thus, it is very difficult to see this statutory provision as one which is silent as to the intent required for the commission of the offence [13]. An offence of providing funding towards terrorism first appeared on the statute books in 1976 and was re enacted in identical form in 1984. Those sections required proof either of knowledge or of actual suspicion. However, the Prevention of Terrorism Act 1989 made a change and introduced the words knowing or having reasonable cause to suspect in place of knowing or suspecting. These changes were deliberate. They are inexplicable unless it was the Parliamentary intention to widen the scope of the offences to include those who had, objectively assessed, reasonable cause to suspect that the money might be put to terrorist use. The change can only have been intended to remove the requirement for proof of actual suspicion. The court cannot ignore this clear Parliamentary decision [18 19]. It would be an error to suppose that the form of offence creating words in section 17(b) create an offence of strict liability. Unlike an offence of strict liability, the accuseds state of mind is relevant for section 17(b). The requirement of an objectively assessed cause for suspicion focuses attention on what information the accused had. The requirement is satisfied when, on the information available to the accused, a reasonable person would suspect that the money might be used for terrorism [24].

The issue in this appeal is whether there may have been an unlawful distribution of capital to a shareholder when the Appellant (PPC) sold the whole issued share capital of a wholly owned subsidiary YMS Properties (No 1) Ltd (YMS1) to the Respondent (Moorgarth). PPC and Moorgarth were both subsidiaries of Tradegro (UK) Ltd (Tradegro). It was accepted that Mr Moore, a director of both PPC and Moorgarth, had genuinely believed that the sale of the shares was at market value. However PPC later claimed that the sale had been at an undervalue. The appeal raises a question as to the approach to be taken to establishing whether there has been an unlawful distribution of capital by a company. The factual background to the sale lies in the corporate structure being used to carry on the business of another company, called simply YMS Limited (YMS), which at the relevant time had also become a subsidiary of Tradegro. Mr Price was appointed as managing director of PPC and became holder of 24.9% of its shares. Tradegro retained 75.1% of PPCs shares. The freehold interests in the properties from which YMS traded were held by another company, YMS Properties (No 2) Ltd (YMS2). YMS2 was a wholly owned subsidiary of YMS1, which was itself a wholly owned subsidiary of PPC. YMS occupied the properties on an informal basis. YMS2s property portfolio was used as security to borrow money. The lender insisted that formal leases be entered into between YMS2 (as holder of the freeholds) and YMS (as occupiers of the properties). These were to include full repairing and insuring obligations on the tenants. The properties were in significant disrepair at the time. The cost of repairs was estimated at 4.6m and YMS was not able to bear that liability. It therefore sought an assurance that it would be given an indemnity against the costs which it might have to pay to satisfy the repairing liability to YMS2. Although it received that assurance, no indemnity or counter indemnity was ever entered into. Later, following a falling out of those involved in managing the business, it was agreed that Mr Price should acquire Tradegros 75.1% holding of PPC. A preliminary step was to be the sale by PPC of the whole share capital of YMS1 to Moorgarth, another subsidiary of Tradegro. In effect, the YMS properties were being extracted from PPC prior to its sale to Mr Price. On 20 October 2003, PPC agreed to sell the whole issued share capital of YMS1 to Moorgarth for 63,225.72. The sale price was calculated on the basis of the open market value of the YMS1 properties (said to be 11.83m), less liabilities for creditors approaching 8m and the sum of 4m in respect of repairing obligations. The deduction of 4m was made in the belief that PPC had given an indemnity or a counter indemnity in respect of YMSs repairing liabilities under the leases, under which that liability would ultimately fall on PPC. As part of the sale by PPC to Moorgarth, PPCs liability under that indemnity or counter indemnity was to be released. In fact, there was no indemnity or counter indemnity. PPC (now under the control of its new owner) claimed that the sale was at an undervalue, by as much as 4m, and was in breach of the common law rule against unlawful distributions of capital. It was not, however, disputed that Mr Moore, a director of both PCC and Moorgarth at the time the sale was negotiated, genuinely believed that the sale of the shares was at market value. The claim was dismissed in the High Court and by the Court of Appeal. The Supreme Court unanimously dismisses the appeal. Lord Walker gives the main judgment. Lord Mance agrees with it, but issues a separate judgment. Lords Phillips, Collins and Clarke agree with both. Lord Walker holds that that whether a transaction infringes the common law rule against unlawful distributions is a matter of substance and not form. The label attached by the parties is not decisive: [16]. The essential issue was how the sale is to be characterised: [24]. PPC argued that the court should adopt an objective approach, so that there is an unlawful distribution whenever a company enters into a transaction with a shareholder which results in a transfer of value not covered by distributable profits, regardless of the purpose of the transaction. Such a relentlessly objective rule would be oppressive and unworkable. It would tend to cast doubt on any transaction between a company and a shareholder, even if negotiated at arms length and in perfect good faith, whenever the company proved, with hindsight, to have got significantly the worse of the transaction: [24]. The courts task is to inquire into the true purpose and substance of the transaction. That calls for an investigation of all the relevant facts, which sometimes include the state of mind of the human beings involved: [27]. Sometimes their states of mind are totally irrelevant. They will be irrelevant, for example, where a distribution described as a dividend is actually paid out of capital. Where there is a challenge to the level of directors remuneration, the test is objective but probably subject to a margin of appreciation: [28]. The participants subjective intentions are, however, sometimes relevant. Something said to be an arms length commercial transaction is the paradigm example: [29]. If the transaction was a genuine arms length transaction then it will stand, even if it may, with hindsight, appear to have been a bad bargain for the company. If, however, it was an improper attempt to extract value from the company by the pretence of an arms length sale, it will be held unlawful. Deciding which category the transaction falls into will depend on a realistic assessment of all the relevant facts, not simply a retrospective valuation exercise in isolation from all other inquiries: [29]. Here there were findings by the Deputy Judge and the Court of Appeal that this was a genuine commercial sale. The appeal was therefore dismissed: [33]. Lord Mance agreed with Lord Walkers reasoning and conclusions. The courts will not second guess companies with regard to the appropriateness or wisdom of the terms of any transaction. There may, however, come a point at which, looking at all the relevant factors, an agreement cannot be regarded as involving in substance anything other than a return or distribution of capital, whatever label the parties attach to it: [42]. That was not the position here: [45]. It could not be said that YMS1 was sold at an undervalue. The reason why only 63,225.72 was paid to PPC was not related to the question of the net value of the YMS properties. It was because PPC itself was seen as having independent counter indemnity obligations to Tradegro which would reduce any sum payable by Moorgarth to PPC (such as the purchase price for YMS1 shares): [45]. Directors can make mistakes about the extent of liabilities attaching to their companies. Even if ill advised or unwise, it does not follow that settlement of such a liability must be re categorised as a distribution of capital, even if it is in relation to a shareholder: [46].

On 9 June 2005, Tullis Russell entered into an asset purchase agreement (the Asset Purchase Agreement) and related services agreement (the Service Agreement) with Inveresk for the acquisition of the property rights to the Gemini brand of paper. To acquire these rights, Tullis Russell was to pay: (i) a fixed sum of 5 million as initial consideration; (ii) a sum of up to 2 million as additional consideration, depending upon the volume of products sold and invoiced by Tullis Russell between 8 November 2005 and 8 November 2006; and (iii) various payments under the Service Agreement. To date, Tullis Russell has paid Inveresk 5 million as initial consideration under the Asset Purchase Agreement and 8 million under the Service Agreement. The parties are now in dispute regarding various payments and sums in damages that are said to be due. Inveresk claims that it is entitled to a further sum of 909,395 under the Asset Purchase Agreement. Tullis Russell claims that Inveresk breached the Asset Purchase Agreement and Service Agreement by failing to maintain required product quality standards and dealing with customers so as to damage the goodwill of the business. It seeks 5,358,032.90 in damages. Two issues arise in the appeal: Firstly, whether the additional consideration claimed by Inveresk has become due and payable under the Asset Purchase Agreement. Secondly, whether Tullis Russell is entitled to retain the sum it claims in damages, pending resolution of the claim, against any payment it is required to make to Inveresk. The Court of Session held that the additional consideration sought by Inveresk was due and payable and that Tullis Russell had no right of retention. The Supreme Court unanimously allows the appeal, holding that the additional consideration has not become due and payable pursuant to the Asset Purchase Agreement and that a right of retention may in principle arise. The matter is remitted to the commercial judge for further procedure. Lord Hope delivered the leading judgment of the Court. The Additional Consideration The operative provisions of the Asset Purchase Agreement clearly direct that, having elected to exercise its right to require a tonnage audit, Inveresk is not entitled to change its position on this issue. The terms of the agreement are perfectly intelligible, and the approach adopted accords with business sense. The additional consideration does not become due and payable until the contractually required tonnage audit is completed [per Lord Hope, paras [21] [24]]. The matter is remitted to the commercial judge to determine how the conduct of the tonnage audit should proceed [per Lord Hope, para [25]; Lord Rodger, para [1]]. The Right of Retention A contractual right of retention can arise notwithstanding the fact that the relevant obligations are not recorded in a single agreement. The critical question in determining whether a right of retention may apply is whether the relevant obligations can truly be said to be counterparts of one another [per Lord Hope, paras [35] [36]]. In the present case, the entire agreement clauses in both the Asset Purchase Agreement and the Service Agreement record the parties agreement that both documents form a single, indivisible transaction. This is also emphasised by the recitals to the Service Agreement. The agreements are expressly linked with each other. The conclusion that they form part of a single transaction to which the principle of mutuality can apply is inescapable [per Lord Hope, paras [37] [38]; Lord Rodger, para [64]]. The Court of Session erred in concluding that the Asset Purchase Agreement and Service Agreement were not properly to be regarded as constituting two parts of a single transaction. The guiding principle in such an assessment is that the unity of the overall transaction should be respected. The analysis should commence form the starting point that all the obligations which the transaction embraces are to be regarded as mutual counterparts unless there is a clear indication to the contrary [per Lord Hope, para [42]]. While the current transaction did proceed in stages, it is unrealistic to suggest that these could be divided into a series of sub units or compartments. The obligations undertaken by Inveresk were all inter related and served the same end. This was to preserve the value of the intellectual property rights and other assets acquired by Tullis Russell as a result of the transaction. Accordingly, Tullis Russells obligation to pay the initial and additional consideration are properly regarded as counterparts to Inveresks obligations under both the Asset Purchase Agreement and the Service Agreement [per Lord Hope, para [45]]. In the result, Tullis Russell are entitled to retain any additional consideration that becomes due pending the outcome of its claims for damages under the Asset Purchase Agreement and Service Agreement. The matter is remitted to the commercial judge for further procedure [per Lord Hope, paras [46] [47]; Lord Rodger, para [65]].

The Appellant is an Ethiopian national who was the subject of a control order. This confined him to a flat for 16 hours a day in a Midlands town away from his family in London. AP came to this country with other members of his family in 1992 at the age of 14. On 6 October 1999, he, his siblings and their mother were granted indefinite leave to remain. In May 2005 he travelled to Somalia and then Ethiopia. On 22 December 2006, upon his detention by the authorities in Ethiopia, the Secretary of State decided to exclude him from the UK. He was then suspected of involvement in terrorism. On APs return to the UK on 28 December 2006 he was duly refused leave to enter and, pending removal, detained under immigration powers until July 2007. He was then released on bail under stringent conditions. The Secretary of State, however, withdrew her decision to exclude AP from the UK when, on 10 January 2008, she was granted permission to make a control order against him. The control order subjected AP to a 16 hour curfew and electronic tagging, together with a number of other restrictions on association and communication such as are usually imposed in these cases. This control order at first required AP to live at an address in North London. APs family, friends and associates had always lived in the London area. On 21 April 2008 the Secretary of State modified the terms of the control order, requiring AP to move to an address in a Midlands town some 150 miles away. It was this modification that led to APs appeal. On 12 August 2008 the High Court allowed APs appeal against the modification, quashing the obligation to live in the Midlands. It rejected APs case under article 8 of the European Convention on Human Rights (ECHR) on the ground that the interference with his family life was justified and proportionate in the interests of national security but decided that the overall effect of a 16 hour curfew and APs social isolation (particularly through his being separated from his family) constituted an article 5 deprivation of liberty. When the matter was before the Court of Appeal there was again no dispute about the need for a control order, only about its terms. The Court of Appeal by a majority reversed the decision of the High Court. AP appealed. The outcome of this appeal is no longer currently relevant to AP himself. APs control order was revoked on 2 July 2009. The Secretary of State has again decided that AP should be deported on national security grounds and since 20 July 2009 he has been on bail pending deportation on conditions, including residence in the Midlands, similar to those of the control order save that the curfew period is now 18 hours. However the points of law raised by APs appeal were said to be of some general importance with regard to control orders. The three issues the Supreme Court had to reach a decision on in this appeal were as follows: Whether conditions which are proportionate restrictions upon article 8 rights to respect for private and family life can tip the balance in relation to article 5 (which guarantees the right to liberty and security), ie whether they can be taken into account in holding that a control order is a deprivation of liberty when, absent those restrictions, it would not have been held to be such. Whether the judge can take into account subjective and/or person specific factors, such as the particular difficulties of the subjects family in visiting him in a particular location, when considering whether or not a control order amounts to a deprivation of liberty. Whether it was permissible for the Court of Appeal to interfere with the first instance judgment on the ground that the judge had relied on findings of fact in respect of article 5 which were inconsistent with his findings of fact in respect of article 8. The Supreme Court unanimously allowed the appeal, set aside the decision of the Court of Appeal and restored the High Courts order. Lord Brown gave the leading judgment. Lord Rodger and Sir John Dyson SCJ delivered concurring judgments. By way of introduction, Lord Brown noted that the majority in the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 385 held that deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest. The courts task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living. (para [1]) In relation to the first issue, Lord Brown considered that the answer was surely an obvious yes. If an article 8 restriction is a relevant consideration in determining whether a control order breaches article 5, then by definition it is capable of being a decisive factor capable of tipping the balance. The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision maker subject only to a challenge for irrationality which neither has nor could have been advanced in this case. (para [12]) Lord Brown was of the view that the Secretary of State was wrong to contend that, in assessing the weight to be given to the restrictive effects of a condition such as that imposed on AP here to reside in the Midlands, the judge should ignore everything that depends on the individual circumstances of the family for example, on the facts of this case, that APs mother has never left London alone and that during term time, because of the children, Sunday is the only day the family can travel. By the same token that it is relevant that, whilst AP must live in the Midlands, his family are in London, so too it is relevant whether their circumstances are such that their distance away so disrupts contact between them as to cause or substantially contribute to APs social isolation. Plainly the family could not be allowed to thwart what would otherwise be an appropriate residential requirement by unreasonably failing to take opportunities open to them to visit AP and save him from social isolation. The correct analysis, however, is that in those circumstances it would be the familys unreasonable conduct and not the residence condition which was the operative cause of the APs isolation. It is not suggested by the Secretary of State that APs family behaved unreasonably in failing to overcome more effectively the practical difficulties they faced in visiting AP on a more regular basis, only that their particular difficulties should have been ignored. That submission cannot be accepted. (para [15]) In relation to the third issue, having considered the relevant parts of the High Courts judgment, Lord Brown held that there was no contradiction between them. (paras [1618])

The issue is whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages. Paragraph 277 of the Immigration Rules [Paragraph 277] was amended with effect from 27 November 2008 to raise the minimum age for a person either to be granted a visa for the purposes of settling in the United Kingdom as a spouse or to sponsor another for the purposes of obtaining such a visa from 18 to 21. The purpose of the amendment was not to control immigration but to deter forced marriages. A forced marriage is a marriage into which at least one party enters without her or his free and full consent through force or duress, including coercion by threats or other psychological means. Mr Quila, a Chilean national, entered into a fully consensual marriage with Ms Jeffery, a British citizen. Mr Aguilar Quila applied for a marriage visa before the amendment took effect, but his application was refused as his wife was only 17 and a sponsoring spouse had to be 18. By the time that Ms Jeffrey had turned 18 the amendment was in force and the Home Office refused to waive it. Consequently, Mr Quila and his wife were forced to leave the UK initially to live in Chile (his wife having had to relinquish a place to study languages at Royal Holloway, University of London) and subsequently to live in Ireland. Bibi (as she invited the Court to describe her) is a Pakistani national who applied to join her husband, Mohammed, a British citizen, in the UK. Bibi and Mohammed had an arranged marriage in Pakistan in October 2008, to which each of them freely consented. Their application was refused as both parties were under 21. The Respondents claims for judicial review of the decisions were both rejected in the High Court. The Respondents successfully appealed to the Court of Appeal, which declared that the application of Paragraph 277 so as to refuse them marriage visas was in breach of their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 [the ECHR]. The Secretary of State has appealed to the Supreme Court. The Supreme Court, by a 4 1 majority, dismisses the Secretary of States appeal on the grounds that the refusal to grant marriage visas to the Respondents was an infringement of their rights under Article 8 ECHR. Lord Wilson gives the leading judgment; Lady Hale gives a concurring judgment. Lord Phillips and Lord Clarke agree with Lord Wilson and Lady Hale. Lord Brown gives a dissenting judgment. Article 8 ECHR was engaged [43; 72]. Applying R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, the relevant question was whether there had been an interference by a public authority with the exercise of a persons right to respect for his private or family life and if so, whether it had had consequences of sufficient gravity to engage the operation of the article [30]. Unconstrained by authority, Lord Wilson would have considered it a colossal interference to require for up to three years either that the spouses should live separately or that a British citizen should leave the UK for up to three years [32]. The ECtHR in Abdulaziz v United Kingdom (1985) 7 EHRR 471 has, however, held that there was no lack of respect for family life in denying entry to foreign spouses. There was no positive obligation on the State to respect a couples choice of country of matrimonial residence [35 36]. Lord Wilson holds that Abdulaziz should not be followed in this respect; there was dissent at the time and no clear and consistent subsequent jurisprudence from the ECtHR as four more recent decisions [38 41] were inconsistent with the decision [43]. The ECtHR has since recognized that the distinction between positive and negative obligations should not generate different outcomes [43]. The Secretary of State has failed to establish that the interference with the Respondents rights to a family life was justified under Article 8(2) ECHR. Paragraph 277 has a legitimate aim, namely the protection of the rights and freedoms of those who might be forced into marriage [45] and is rationally connected to that objective, but its efficacy is highly debatable [58]. A number of questions remain unanswered including how prevalent the motive of applying for UK citizenship is in the genesis of forced marriages; whether the forced marriage would have occurred in any event and thus the rule increase the control of victims abroad and whether the amendment might precipitate a swift pregnancy in order to found an application for a discretionary grant of a visa [49]. The Secretary of State has failed to adduce any robust evidence that the amendment would have any substantial deterrent effect [50; 75]. By contrast, the number of forced marriages amongst those refused a marriage visa had not been quantified [53]. The only conclusion that could be drawn was that the amendment would keep a very substantial number of bona fide young couples apart or forced to live outside the UK [54], vastly exceeding the number of forced marriages that would be deterred [58; 74]. The measure was similar to the blanket prohibition on persons subject to immigration control marrying without the Secretary of States written permission found to be unlawful in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53 [57, 78 79]. The Secretary of State has failed to exercise her judgement on this imbalance and thus failed to establish both that the measure is no more than is necessary to accomplish the objective of deterring forced marriage and that it strikes a fair balance between the rights of parties to unforced marriages and the interests of the community in preventing forced marriage. On any view, the measure was a sledgehammer but the Secretary of State has not attempted to identify the size of the nut [58]. Lady Hale holds that the debate on Abdulaziz is something of a red herring as the Secretary of State could not simultaneously state that the measure was not for the purpose of controlling immigration and rely upon jurisprudence wholly premised on the States right to control immigration [72]. She further holds that the restriction was automatic and indiscriminate [74]; failed to detect forced marriages and imposed a delay on cohabitation in the country of choice, which was a deterrent that could impair the essence of the right to marry under Article 12 ECHR [78 79]. Whilst the judgment is essentially individual, it is hard to conceive that the Secretary of State could avoid infringement of Article 8 ECHR when applying Paragraph 277 to an unforced marriage [59; 80]. Lord Brown, dissenting, holds the extent of forced marriage is impossible to quantify so the deterrent effect of Paragraph 277 could never be satisfactorily determined [87]. The judgement of how to balance the enormity of suffering within forced marriages with the disruption to innocent couples was one for elected politicians, not for judges [91]. The measure was not an automatic indiscriminate restriction [92]; would be disapplied in exceptional circumstances [93] and similar rules applied in other European countries [85]. To disapply the rule would exceed ECtHR jurisprudence and in such a sensitive context, government policy should not be frustrated except in the clearest cases [97].

Wang Yam was charged with the murder of Allen Chappellow and associated offences in 2007. He denied the murder charge and alleged that he had been given the deceaseds cheques, credit cards and banking information by various gangsters. The Crown applied for an order that part of the trial relating to evidence which Wang Yam wished to submit in his defence take place in camera (i.e. in a closed court) in the interests of national security and to protect the identity of a witness or other person. This order was granted in January 2008 by Ouseley J. At trial, because of the Wang Yams difficulty in keeping distinct the sensitive and non sensitive aspects of his evidence, the entire defence case was heard in camera in the presence of Wang Yam and his representatives. In January 2009 Wang Yam was convicted of murder and burglary and sentenced to life imprisonment. In April 2011 Wang Yam lodged an application with the European Court of Human Rights (ECtHR) against the UK, complaining that his trial and conviction were unfair and therefore violated article 6.1 of the European Convention on Human Rights (ECHR). The UK submitted that the application should be declared manifestly ill founded and inadmissible, or alternatively dismissed on the merits. Wang Yam argued that he should be permitted to refer to the in camera material in his response to the UKs observations before the ECtHR. In February 2014 Ouseley J ruled that Wang Yam should not be able to disclose the in camera material to the ECtHR. Wang Yam applied for and was granted judicial review of that decision, but the application was dismissed on its merits. The Divisional Court allowed a leapfrog appeal direct to the Supreme Court on the following questions: Is there a power to prevent an individual from placing material before the European Court of Human Rights? If so, can the power be exercised where the domestic court is satisfied that it is not in the interests of state for the material to be made public even to the Strasbourg court? The Supreme Court unanimously dismisses Wang Yams appeal. Lord Mance gives the judgment of the Court. In a purely domestic context the English courts have a discretion to refuse to permit disclosure of material deployed in camera. The issue before the Supreme Court is whether this power ceases to be exercisable once an applicant to the ECtHR decides that he wishes to disclose the material to that court in the context of a complaint that the in camera proceedings made his trial unfair [1 2]. Wang Yams case depends on the proposition that the courts below have discretion to prevent the disclosure of in camera material to the ECtHR [20]. This proposition depends in turn on the submission that such discretion would involve the UK in a breach of the international obligations under article 34 ECHR, which provides that: The Court may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. Refusal to permit disclosure to the ECtHR does not constitute a breach of international law [22, 24 34]. The English courts have repeatedly found that it was both necessary and fair to hold part of the trial in camera. The in camera material formed part of Wang Yams own defence and has been seen by both him and his legal representatives. The suggestion that its publication would have advanced this defence has been rejected as implausible. If any court is to reach the conclusion that the UK is in breach of article 34 it must be the ECtHR and not the English courts [25]. On Wang Yams case he would be the sole judge of what is necessary at this stage for the effective presentation of his case to the ECtHR. Wang Yam relied on article 34, rather than article 38 ECHR, which provides that: The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities. The ECtHR is able to decide under article 38 whether any further material should be requested from the UK to enable it to consider Wang Yams case [27]. The case law of the ECtHR indicates that it will not act as a fourth instance appeal court re determining issues of national security, but rather it will review the domestic adjudication on the issues involved and, if satisfied of its fairness and thoroughness, may accept the outcome without insisting on automatic disclosure to itself of secret material [28 33]. This reason alone is sufficient to dismiss the appeal [34]. Even if refusal to permit disclosure to the ECtHR breached an international obligation, English courts would not be obliged automatically to give effect to such obligation. The UK takes a dualist approach to international law. The starting point when considering a general discretionary common law power is that domestic and international law considerations are separate. The decision maker may take international law obligations into account but is not bound to do so [35]. In R (Hurst) v London Northern District Coroner [2007] 2 AC 189 even the minority who suggested that a domestic decision maker should at least give consideration to international rights which can properly be regarded as fundamental went no further. In any event, given that an appeal lies to the ECtHR under article 38 ECHR, any obligation on the UK at this stage under article 34 could not be regarded as fundamental [36]. In this context, Ouseley J took an orthodox approach to his general discretion and therefore the appeal must also fail on the second ground [37 38].

The Appellant, Mr Campbell, was employed as an apprentice joiner by a company whose sole director was Mr Gordon, the Respondent. The Respondent was responsible for the day to day operation of the company. The Appellant suffered an injury whilst working with an electric saw on 28 June 2006. The companys employers liability policy excluded claims arriving from the use of woodworking machinery powered by electricity, and thus excluded any claim arising out of the Appellants accident. The companys failure to have in place appropriate assurance was a breach of its obligations under section 1(1) of the Employers Liability (Compulsory Insurance) Act 1969 (the 1969 Act). The company went into liquidation in 2009. The issue for the court is whether the Respondents failure, as director of the company, to provide adequate insurance, makes him liable personally in damages to the Appellant. The Appellants claim was upheld by the Lord Ordinary but dismissed by a majority of the Inner House. The Supreme Court dismisses Mr Campbells appeal by a majority of three to two. Lord Carnwath gives the majority judgment, with which Lord Mance and Lord Reed agree. Lord Toulson gives a dissenting judgment, with which Lady Hale agrees in a separate dissent. Lord Carnwath holds that there is no authority for the proposition that a person can be made indirectly liable for breach of an obligation imposed by statute on someone else, and that it is only possible to pierce the corporate veil to impose liability on a director or other individual through whom the company acts, if it is expressly or impliedly justified by the statute [13]. In section 5 of the 1969 Act, Parliament has imposed a specific and closely defined criminal penalty on a director bearing responsibility for a failure to insure, which is linked to the criminal liability of the company [14]. Lord Carnwath finds that in determining statutory liability, the court must pay due respect to the language and structure of the statute, rather than to preconceptions as to what its objectives could or should have been [18]. He rejects the argument that the imposition of criminal liability is sufficient to render the director civilly liable, finding that other statutory provisions imposing criminal liability on directors for offences by their companies have not been treated as giving rise to civil liability [21 2]. He finds that the language in section 5 of the 1969 Act was deliberately chosen and is specifically directed at criminal liability, and accordingly it is difficult to infer an intention to impose a more general liability [23]. Lord Toulson would have allowed the appeal, finding that the effect in substance of section 5 of the 1969 Act is to place a legal obligation on a director or other officer of a company not to cause or permit the company to be without the required insurance, on pain of a criminal penalty. He considers that the imposition of criminal responsibility for a specified act (or omission) carries with it a legal obligation not to act (or omit to act) in such a way [26]. Lord Toulson prefers a functional approach to interpreting the legislation which looks to the objective of the statute, which is employee protection [30]. However, even on a formalist approach, the director is in law guilty as a principal of failing to insure [31]. Since the Victorian age, the courts have held that breaches of legislation for the protection of employees are actionable at common law by the employee suffering the breach [32]. If the legislation is silent on whether there should be civil liability, the judges role is to fill the gaps [34]. Where legislation is passed to protect employees, a breach will ordinarily give rise to a cause of action, absent a clear statutory intention to the contrary [41]. Lady Hale agrees with Lord Toulson and would have allowed the appeal. Lady Hale considers it absolutely clear that in enacting the 1969 Act, Parliament did intend that failure to insure should give rise not only to criminal liability but also to civil liability towards an employee who had been injured by his employers breach of duty and who, because of the failure to insure, would not otherwise receive the compensation for his injuries to which he was entitled [43]. She stresses that, contrary to the view expressed by the Inner House, the law has not been changed by recent House of Lords and Supreme Court decisions.

Section 444(1) of the Education Act 1996 provides that if a child of compulsory school age fails to attend regularly at the school where he is a registered pupil, his parent is guilty of an offence. The issue in this appeal is the meaning of regularly. Regularly has at least three possible meanings in this provision: it could mean (a) evenly spaced; (b) sufficiently often; or (c) in accordance with the rules. Mr Platt sought permission from his daughters head teacher to remove her from school during term time for a holiday. The head teacher refused the request but Mr Platt took his daughter on holiday as planned, causing her to miss seven school days in April 2015. Mr Platt was issued with a penalty notice on her return. He did not pay the fixed penalty and was prosecuted in the Isle of Wight Magistrates Court. The magistrates ruled that Mr Platt had no case to answer. They held that his daughter had attended school regularly because, even after the holiday, she had attended 90.3% of the time up to that point in the academic year. The Council appealed on the issue of whether the magistrates had been entitled to take into account attendance at school outside the period of the absence. The Divisional Court held that the magistrates had not erred in doing so, but certified a point of law of general public importance on the meaning of the words fails to attend regularly in section 444(1). The Supreme Court unanimously allows the Councils appeal, declaring that the word regularly means in accordance with the rules prescribed by the school. Lady Hale, with whom the other Justices agree, gives the only judgment. The history of the law preceding section 444(1) of the Education Act 1996 shows that before 1944 it was well established that the offence of failing to cause a child to attend school without a reasonable excuse could be committed by a single days absence [8 14]. The Education Act 1944 replaced the concept of reasonable excuse with a closed list of circumstances in which absence was permitted, and provided that the offence would be committed if the child failed to attend school regularly. This provision was reproduced in the Education Act 1993 and is now found in s 444(1) of the 1996 Act [15 19]. The penalty notice regime is an alternative to immediate prosecution and offers a parent the opportunity of escaping liability to conviction by paying the penalty [21]. The question for the Supreme Court is which meaning of the word regularly was intended by Parliament when enacting s 444(1). It plainly is not at regular intervals as this would mean attendance at school once a week is regular even though attendance every day is required by the rules. Sufficiently frequently was the meaning assumed in some earlier cases, and in the lower courts in this case, but there are many reasons to think that this was not what Parliament intended in 1944 or in 1996: School attendance is compulsory and there are rules about when it is required [32]. The purpose of the 1944 act was to increase the scope and character of compulsory state education and it is implausible to suggest that it was intended to relax the previous obligation on parents to secure their childrens attendance [33]. The defences were tightened in 1944 and the flexibility inherent in a reasonable excuse was removed [34]. The exception for absence on a single day for religious observance in s 444(3) would not be needed unless it would otherwise amount to a failure to attend regularly [35]. Provisions for parents with an itinerant trade or business did not suggest that regularly was a matter of fact and degree [36]. A boarder fails to attend regularly under s 444(7) if he is absent without leave during any part of the school term, and there is no reason why 100% attendance should be required of boarders but not of day pupils [37]. This interpretation is far too uncertain to found a criminal offence. A parent would not know on any given day whether removing the child from school is a criminal offence [39]. There are sound policy reasons for rejecting this interpretation because of the disruptive impact of the absence for the education of the individual child and of the other pupils [40]. It permits an approach to rule keeping which no educational system can be expected to find acceptable [41]. These reasons also point towards the correct interpretation of regularly being in accordance with the rules. A sensible prosecution policy will allow minor or trivial breaches to be dealt with appropriately [43]. This was not thought to be a problem under the pre 1944 law [44]. The rule that statutes imposing criminal liability must enable everyone to know what is and is not an offence is important [45]. This interpretation is consistent with the provisions excepting from the scope of the offence a child absent with the leave of the school [46], and with the obligation on parents to cause their child to receive full time education under section 7 of the 1996 act [47]. Accordingly, the penalty notice was properly issued to Mr Platt and, having not paid the penalty fine, he should have been convicted of the offence unless he can establish one of the statutory exceptions. The case is therefore returned to the magistrates with a direction to proceed as if his submission of no case to answer had been rejected [49].

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

This appeal concerns the interpretation of section 1(1) of the Defamation Act 2013 (the 2013 Act), which is one of the principal new provisions. Section 1(1) provides: (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The claimant, Bruno Lachaux, is a French aerospace engineer who at the relevant time lived with his British wife, Afsana, in the United Arab Emirates (UAE). The marriage broke down. In April 2011, he began divorce proceedings in the UAE courts and sought custody of their son, Louis. In March 2012, Afsana went into hiding with Louis in the UAE, claiming that she would not get a fair trial there. In August 2012, the UAE court awarded custody of Louis to his father. In October 2012, Mr Lachaux, having found out where Louis was, used the powers under the custody order to take Louis under his care, and subsequently initiated a criminal prosecution against Afsana for abduction. In January and February 2014, several British newspapers published articles making allegations about Mr Lachauxs conduct towards Afsana during the marriage and in the course of the divorce and custody proceedings. These appeals arise out of two libel actions begun by him in the High Court on 2 December 2014 against the publishers of the Independent and Evening Standard, and a third begun on 23 January 2015 against the publisher i. In February 2015, at a so called meaning hearing in the High Court, Mr Justice Eady held that the Independent and Evening Standard articles had eight and 12 defamatory meanings respectively. In summary, they were held to have meant (amongst other things) that Mr Lachaux had been violent and abusive towards his wife during their marriage, had hidden Louis passport to stop her removing him from the UAE, had made use of UAE law and the UAE courts to deprive her of custody and contact with her son, had callously and without justification taken Louis out of her possession, and then falsely accused her of abducting him. The newspapers did not contest the primary facts relied on by Mr Lachaux in his Particulars of Claim. Instead, their case was that the statements in the articles were not defamatory because they did not meet the serious harm test under section 1(1) of the 2013 Act. In the High Court, Mr Justice Warby (Warby J) held that Mr Lachaux had demonstrated, by evidence, that the harm caused by the publications complained of was serious, within the meaning of section 1(1). The Court of Appeal dismissed the newspapers appeal, but focused instead on the inherent tendency of the words to damage Mr Lachauxs reputation. The newspapers appeal to the Supreme Court against the finding of serious harm. The Supreme Court unanimously dismisses the appeal, but for reasons different from those of the Court of Appeal. Lord Sumption gives the lead judgment, with which all members of the Court agree. The law distinguishes between defamation actionable per se, which includes all libels and now two (previously four) special types of slander, and defamation actionable only on proof of special damage, which covers all other slanders [4 5]. Pecuniary loss must be established for the latter category [5]. Before the 2013 Act, two decisions (Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (CA) and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985 (QB)) introduced the requirement that damage to reputation in defamation actionable per se must pass a minimum threshold of seriousness [7 9]. This Court considers that section 1 of the 2013 Act not only raises the threshold of seriousness from that in Jameel and Thornton, but requires its application to be determined by reference to the actual facts about its impact, not merely the meaning of the words [12]. The reasons are as follows: First, the 2013 Act undoubtedly amends the common law to some degree, so the least that section 1 achieved was to introduce a new threshold of serious harm which did not previously exist. If serious harm within the meaning of section 1(1) can be demonstrated only by reference to the inherent tendency of the words, no substantial change in the law would have been achieved. However, it is clear that section 1 was intended to make the significant amendment that the extent of damage is now part of the test for a defamatory statement. [13, 16] Secondly, section 1 necessarily means that a statement which would previously have been regarded as defamatory, given its inherent tendency, is no longer actionable unless it has caused or is likely to cause harm which is serious. The words has caused refer to the consequences of the publication, specifically historic harm. This is a factual matter which must be established by reference to the impact of the statement. It depends on a combination of the inherent tendency of the words and their actual impact on the recipients. The words likely to be caused naturally refer to probable future harm. If past harm may be established as a fact, Parliament must have assumed that future harm could too. [14] Thirdly, section 1(1) must be read with section 1(2). Section 1(2) deals with how section 1(1) is to be applied to defamatory statements in relation to a body trading for profit. It adopts the serious harm requirement, but provides that for such a body the statement must have caused or be likely to cause serious financial loss. Thus, for trading bodies, the financial loss in section 1(2) is the measure of the harm referred to in section 1(1), not special damage as understood in the law of defamation. It must exceed the pre 2013 Act threshold of seriousness. This requires an actual impact analysis. [15] Lord Sumption does not accept that this interpretation of section 1 leads to any major inconsistency with section 8 (on limitation) or section 14 (on slanders actionable per se). [17 19] On the facts, the Supreme Court largely adopts Warby Js legal approach. It finds no error in his serious harm finding [20]. The finding was properly based on a combination of the meaning of the words, Mr Lachauxs situation, the circumstances of publication and the inherent probabilities [21].

This appeal is about the meaning of turpitude in the ex turpi causa defence. This defence allows a defendant to resist a claim which is founded on the claimants own illegal or immoral acts. The appellants (collectively Servier) hold a number of patents for perindopril erbumine (a drug used for treating hypertension and cardiac insufficiency). European patent protection for the compound itself expired in June 2003, but a UK patent protecting a crystalline form continued and Serviers UK subsidiary was the exclusive licensee. Canadian patent protection for the compound itself will not expire until 2018. The respondents (collectively Apotex) are a Canadian group specialising in the manufacture and marketing of generic pharmaceutical products. The parties agreed that, for the purposes of this appeal, each group of companies could be treated as one legal entity each. Apotex began to import and sell generic perindopril erbumine tablets in the UK at the end of July 2006. Servier obtained an interim injunction against Apotex to stop it from doing this. In order to get the injunction, Servier had to give a cross undertaking in damages, meaning that it promised to compensate Apotex for any loss caused by the injunction if it later turned out that the injunction should not have been granted. In the event, the court found that the UK patent was invalid, and so Apotex became entitled to compensation from Servier. It is agreed that such compensation should be calculated on the basis that Apotex would have sold an additional 3.6m packs of tablets in the UK if there had been no injunction. These packs would have been manufactured in Canada but sold in the UK. Meanwhile, the parties were also litigating in Canada about the Canadian patent. That patent was found to be valid and infringed. Damages have not yet been assessed. The illegality issue arises because Servier argues that it is contrary to public policy for Apotex to recover damages for being prevented from selling a product whose manufacture in Canada would have been unlawful there as an infringement of Serviers Canadian patent. Servier won on this point at first instance before Arnold J but lost in the Court of Appeal. The Court of Appeal thought that the infringement of the Canadian patent did not count as turpitude for the purposes of the illegality defence, because: (i) Apotex honestly and reasonably believed that the Canadian patent was invalid too; (ii) it was important that Servier should pay once it had been discovered that it was enjoying a monopoly it was not entitled to; and (iii) the effect of the Canadian patent was limited to Canada, where (iv) the Canadian court had refused to grant an injunction and (v) Apotex was paying damages which would be taken into account when calculating Serviers liability on the cross undertaking. Servier appealed to the Supreme Court. The Supreme Court unanimously dismisses Serviers appeal, but on grounds which differ from those of the Court of Appeal. It holds that the infringement of the Canadian patent by Apotex does not constitute turpitude for the purposes of the ex turpi causa defence. Lord Sumption, with whom Lord Neuberger and Lord Clarke agree, gives the main judgment. Lord Mance agrees with Lord Sumption and offers some further comments. Lord Toulson also dismisses the appeal but agrees with the approach taken by the Court of Appeal. The majority of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 rejected the public conscience approach on the ground that it imported a discretionary element into what was in reality a rule of law [13 18]. The Court of Appeal was wrong to treat the question as depending on the culpability of the illegality, the proportionality of the application of the defence or the general merits of the particular case [19]. Turpitude involves a breach of the public law of the state (or in some cases its public policy). The paradigm case of turpitude is a criminal act. In addition, the category of turpitude includes certain quasi criminal acts, such as: (i) dishonesty or corruption; (ii) certain anomalous acts (such as prostitution) which, while not criminal, are contrary to public policy and commonly involve criminal liability on the part of others; and (iii) the infringement of statutory rules enacted for the protection of the public interest and attracting civil sanctions of a penal character [23 30; 34]. The grant of a patent gives rise to private rights, the infringement of which does not engage the public interest so as to give rise to the ex turpi causa defence [30]. Lord Toulson agrees that the appeal should be dismissed, but he says that the Court of Appeal was right to take public policy considerations into account, because the defence is based on public policyas a majority of the Supreme Court recognised in Hounga v Allen [2014] UKSC 47 [62]. The public interest in the enforceability of cross undertakings in damages is an important factor pointing in favour of the recovery of damages by Apotex [63]. It may, however, be necessary to re analyse Tinsley v Milligan [1994] 1 AC 340 in a future case [64].

The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape. Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assanges absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (EAW) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(the Framework Decision), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (the 2003 Act). Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a judicial authority as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance. The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act. Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result to be achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208 217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase judicial authority [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114 119][160 170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to competent judicial authority which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155 159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104]. Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase judicial authority had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161]. Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UKs international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of judicial authority in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].

The appeal relates to a restrictive covenant given by the developer of a shopping centre in a lease that it granted to a retailer over part of the centre. In giving the covenant the developer and later the respondent (Peninsula) each undertook not to allow any substantial shop to be built on the rest of the centre in competition with the appellant (Dunnes). Peninsula now argues that the covenant engages the doctrine of restraint of trade (the doctrine); that it is unreasonable; and that it is therefore unenforceable. This appeal concerns whether the covenant engages the doctrine. The developer, Mr Shortall, wished to develop a shopping centre on land that he owned in Londonderry. He wanted an anchor tenant there in order to attract other retailers, and so he granted a lease to Dunnes, a subsidiary in a Dublin based group of retail companies. In the lease he covenanted that any development on the site would not contain a unit of 3,000 square feet or more whose purpose was the sale of food or textiles. Dunnes built its store and the centre opened. Mr Shortall later assigned his freehold interest in the land, together with the burden of the covenant, to the respondent (Peninsula), a property holding company which he managed and which he and his wife owned. The success of the shopping centre subsequently declined. Peninsula brought a claim in the High Court of Northern Ireland seeking (among other things) a declaration that the covenant was unenforceable at common law. McBride J dismissed the claim. She observed that, following the decision of the House of Lords in Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269 (Esso), it was necessary, in order to determine whether the covenant engaged the doctrine, to ask whether Mr Shortall or Peninsula had, on entry into the covenant, surrendered a pre existing freedom of theirs to use the land. She held that Mr Shortall had surrendered such a freedom, but that Peninsula had not; and that the covenant had therefore engaged the doctrine only until the assignment to Peninsula had occurred. The Court of Appeal allowed Peninsulas appeal, holding that the doctrine had been engaged both before and after the assignment. Dunnes now appeals to the Supreme Court. The Supreme Court unanimously allows the appeal and dismisses Peninsulas common law claim. Lord Wilson gives the lead judgment, with which Lord Lloyd Jones, Lady Arden and Lord Kitchin agree. Lord Carnwath gives a concurring judgment. Lord Wilson observes that the courts duty in this appeal is to examine the decision in Esso in the light of questions of logic and public policy and to ask whether the surrender of a pre existing freedom is an acceptable criterion for engagement of the doctrine [16]. Dunnes made a preliminary argument that, as neither Mr Shortall, a developer, nor Peninsula, a property holding company, was a trader, no restraint on them could be a restraint of trade. That argument appears to be too narrow. The covenant does restrain trade because it restrains Peninsula from causing or permitting a trade in specified goods in a retail unit of a specified size on the site [17]. The Esso case concerned a type of covenant under which the owner of a petrol station undertakes to buy from a particular supplier all the petrol to be sold at the station (a solus agreement). The respondent had entered into two solus agreements with Esso, each in respect of a different petrol station [19]. The respondent later repudiated the agreements and Esso sought an injunction requiring it to abide by them [20]. In the House of Lords, Lord Reid, with the support of the majority, formulated what has become known as the pre existing freedom test: he stated that a covenant restraining the use of land would engage the doctrine if, on entering into it, the person doing so (the covenantor) gives up some freedom which otherwise he would have had [23 24]. He held, again with majority support, that in relation to both agreements the doctrine was engaged [28]. Lord Wilberforce put forward a different test, known as the trading society test, under which a covenant restraining the use of land does not engage the doctrine if it is of a type which has passed into the accepted and normal currency of commercial or contractual or conveyancing relations and which may therefore be taken to have assumed a form which satisfies the test of public policy [26, 46]. Applying this test, he, too, concluded that the solus agreements engaged the doctrine [28]. The pre existing freedom test has received intense academic criticism [31]. In terms of public policy, which is the foundation of the doctrine, there is no explanation why a restraint should engage the doctrine if the covenantor enjoyed a pre existing freedom but why an identical restraint should not engage it if he did not do so [44]. The trading society test, by contrast, is consonant with the doctrine [47]. The court should therefore make use of its ability, recognised in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, to depart from a previous decision of the House of Lords, and should depart from the pre existing freedom test formulated in the Esso case [49 50]. The objections to the test are that it has no principled place within the doctrine; that it has been criticised for over 50 years but scarcely defended; and that courts in Australia and parts of Canada have rejected it [32 43, 50]. Application of the trading society test to the facts of this case is straightforward and so there is no need to send the matter back to a lower court. For it has long been accepted and normal for the grant of a lease in part of a shopping centre to include a restrictive covenant on the part of the landlord in relation to the use of other parts of the centre. It follows that the covenant in this case has at no time engaged the doctrine [51]. So the question of whether the assignment of the burden of the covenant to Peninsula affected the engagement of the doctrine no longer arises [52]. Peninsula seeks an alternative remedy under the Property (Northern Ireland) Order 1978, which gives the Lands Tribunal or the High Court the power to make an order modifying or extinguishing the covenant if it constitutes an impediment to the enjoyment of land. That is a more satisfactory vehicle for resolution of the issues in this case. Peninsulas claim under the Order should now proceed to be heard [54 57]. In his concurring judgment Lord Carnwath agrees that the pre existing freedom test should be discarded in favour of the trading society test and that the appeal should be allowed [59 60, 68]. As an exception to ordinary principles of freedom of contract, the doctrine should not be extended without justification beyond established categories [61]. What matters is the practical effect of the restriction in the real world, and its significance in public policy terms [62].This case is different from Esso and the other trading cases: for the agreement is not in essence an agreement between traders but a transaction in land. The only trade which might be inhibited by it is that of a potential future occupier. None of the authorities suggests that there is any public policy reason or legal basis for protecting that mere possibility [63]. The covenant in this case does not restrict, but rather facilitates, the developers business [65].

This appeal concerns the proper construction of a term of a lease which gives the Appellant (the tenant) the option to purchase the leased property from the Respondent (the landlord). The question was whether, given the particular drafting, the Respondent was entitled to take into account hope value attributable to the potential for residential development when it determined the option price. The lease in question was a fifty year lease of land near Cumbernauld, commencing on 1 June 1999. The Appellant was to develop a golf course on the land. The Appellant was given an option to purchase the land. The lease set out how the option price was to be calculated. The relevant part of the clause provided that it was to be equal to the full market value of the subjects as at the date of entry for the proposed purchase (as determined by the landlords) of agricultural land or open space suitable for development as a golf course. But, in determining the full market value, the landlords were to assume that the subjects were in good and substantial order and repair, that all obligations of the landlords and the tenants under the lease had been complied with and that they were ready for occupation. They were to disregard any improvements carried out by the tenants during the period of this lease otherwise than in pursuance of an obligation to the landlords, and any damage to or destruction of the subjects of the lease. Neither party seems to have contemplated, when they entered into this lease, that the site might be used for residential development. However, it has now been identified as being in an area which has the potential for housing led urban expansion. This gives it a hope value which was not in prospect when the lease was entered into. The Appellant exercised the option to purchase on 8 October 2007. The Respondent fixed the price at 5.3 million. This figure included value attributable to the development potential of the land. The Appellant took issue with this valuation on the ground that it was far in excess of the value of the land as a golf course. Eventually, the Respondent served notice on the Appellant requiring payment of 5.3 million. When the Appellant did not pay, the Respondent terminated the option contract. The parties are agreed that, if the termination was valid, the option was spent and could not be exercised again. The Appellant sought a declaration that the option contract has not been validly rescinded and that the Respondent is to determine the full market value of the land without reference to any increase in value attributable to its potential for residential development. They relied, in particular, on the inclusion in the lease of the words of agricultural land or open space suitable for development as a golf course. The Lord Ordinary found for the Appellant. His decision was reversed by the Inner House, which held that full market value meant what it said; that express wording would have been needed in order for considerations relevant to market value to be ignored, and that there was no such wording here. The Appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Respondent was entitled, when determining the option price, to take full account of the lands potential for development. Lord Hope holds that the problem arises because of the conflict between the words of the first part of the clause (full market value of the subjects of agricultural land or open space suitable for development as a golf course) and the assumptions and disregards in the second part. These two parts of the clause approach the question of value on different bases. The earlier parts were designed to settle the price for the purchase of land that will have a value in the open market that takes account of the potential for development. The assumptions and disregards were designed to settle the basis for a purchase of the land in its existing use. The court has to recognise the poor quality of the drafting and try to give a sensible meaning to the clause as a whole, which takes account of the factual background known to the parties at the time they entered into the lease: [16] [19]. The commercial or business object of the provision has to be taken into account: [21] The Appellants construction would provide them with a substantial windfall at the expense of the Respondent: [23]. Had reasonable commercial parties directed their mind to the benefits which would accrue to the Appellant if the option was exercised, they would have agreed that the option price was to be the full market value of the land, taking account of any development potential. That is what the parties must be taken to have agreed in this case: [23]. Lord Rodger also holds that the lease should be construed as a commercial agreement. It seems unlikely that parties to such an agreement would have intended the Appellants construction: [26]. Something had gone wrong with the drafting: [27]. In those circumstances, it is useful to start with those parts of the clause whose meaning was clear and then to consider those parts which are more difficult to understand: [28]. The meaning of the assumptions and disregards is clear: [28]. They provide that, contrary to the approach taken by the parties, the valuation is to be on the basis that the golf course has been constructed and is in good order and repair: [29] [32]. The words of agricultural land or open space suitable for development as a golf course cannot be construed inconsistently with the clear directions in the assumptions and disregards so as to require the valuer to assume that the golf course had not been developed: [33]. The clause contains no instructions to ignore any other factor which might be relevant to the value of the golf course: [34]. The approach contended for by the Appellant would be an unusual and artificial approach to valuation, given that there was no limit on the use to which the land could be put after the option was exercised: [36]. Lady Hale agrees with Lord Rodgers approach and also concludes that the appeal should be dismissed: [44]. Lord Clarke agrees that the appeal be dismissed, emphasising that any other conclusion would flout business common sense: [45]. Sir John Dyson agrees that the appeal should be dismissed, preferring Lord Rodgers reasoning to Lord Hopes to the extent that there is any difference between them: [46].

This appeal concerns two questions. The first is, in what circumstances will the law treat the authority of an agent as irrevocable? The second is whether the receipt of money at a time when the recipient knows that imminent insolvency will prevent him from performing a corresponding obligation, can give rise to liability to account as a constructive trustee. Angoves PTY is an Australian winemaker, which employed an English company, D&D Wines International Ltd, as its agent and distributor in the UK. D&D bought wines from Angoves, and also sold wines on Angoves behalf to UK retailers. That relationship was governed by an Agency and Distribution Agreement (ADA), which was terminable by either side on six months notice, or immediately on the appointment of an administrator or liquidator. D&D entered into administration on 21 April 2012, and into creditors voluntary liquidation on 10 July 2012. There were outstanding invoices in the amount of A$874,928.81, which represented the price of wine that D&D had sold to two UK retailers who had not yet paid. Angoves lawfully terminated the ADA and purported to terminate D&Ds authority to collect the price from those two retailers by written notice on 23 April 2012. The termination notice declared that Angoves proposed to collect the price directly from the customers and would account separately to D&D for their commission. The liquidators of D&D objected to this. They said that they were entitled to collect on the outstanding invoices, deduct the commission due to D&D, and leave Angoves to prove in the winding up for the rest of the price. They argued that D&Ds authority as agent to collect the price of the goods was irrevocable, because they needed it to recover their commission. Angoves disputed this. They argued in the alternative that the moneys held by D&D were held on constructive trust for them. The judge held that D&Ds authority to collect the price from the customers ended on service of Angoves termination notice. The Court of Appeal allowed the liquidators appeal, holding that D&Ds authority survived the termination notice. The argument that D&D held the proceeds of the invoices on trust for Angoves failed both at first instance and on appeal. The Supreme Court unanimously allows Angoves appeal on the first question. D&Ds agency was revoked by Angoves termination notice, but the moneys were not held on constructive trust for Angoves. Lord Sumption gives the judgment, with which the other Justices agree. The authority of an agent is inherently terminable, even where it is agreed to be irrevocable, unless it is coupled with a relevant interest of the agent. This requires, in addition to an agreement that the agents authority is to be irrevocable, that the authority is given to secure a subsisting proprietary interest or personal liability of the agent. The mere existence of such an interest will not generally be enough to make the authority irrevocable [7]. Neither of those conditions is satisfied on the facts of this case. D&Ds authority was not expressed to be irrevocable in the agency agreement, and there is no implication to that effect. Because there was nothing in the agreement to stop customers paying Angoves directly, collection of commission could not sensibly be regarded as a right or security of D&D. Deduction from the price paid by customers was not the only way that D&D could recover its commission: customers could pay Angoves directly, who would then pay it to D&D [16]. Turning to the second question, the argument was that where money was paid for a consideration which the payee knew at the time of receipt was bound to fail because of his imminent insolvency, that fact alone was enough to give rise to a constructive trust of the money in the payees hands. This argument is rejected. The price was paid to D&D by the customers absolutely, in discharge of their contractual liability. The judge had held that the agency relationship did not itself give rise to a trust of money in D&Ds hands which they had collected from customers, and that the agency relationship between D&D and Angoves was in the relevant respects one of debtor and creditor. In these circumstances the mere fact that it was received at a time when D&Ds personal liability to account to Angoves would not be performed could make no difference to the basis on which they held the money. It did not become unconscionable for them to retain it simply because the statutory insolvency regime intervened to require it to be shared pari passu with other creditors (Neste Oy v Lloyds Bank Plc [1983] 2 Lloyds Rep 658 and In re Japan Leasing Europe Plc [1999] BPIR 911 overruled) [31].

The appellant obtained a job as a playground assistant. In connection with her employment, the police were required to provide her with an enhanced criminal records certificate (ECRC). They disclosed to the school that she had been accused of neglecting her child and non cooperation with social services, and her employment was terminated. She claimed that the police disclosure violated her right to respect for her private life under the Human Rights Act (the HRA). The Supreme Court holds that, when determining whether to disclose non criminal related information retained in police records in connection with an application to work with vulnerable persons, the police must give due weight to the applicants right to respect for her private life. However, the facts narrated were true, the allegation was directly relevant to her employment and the school was entitled to be apprised of the information. Therefore, while the consequences for the appellants private life are regrettable, disclosure could not in this case be said to be disproportionate to the public interest in protecting vulnerable people [para [48], [49], [58] and [86]]. The appeal must be dismissed. Article 8 was applicable, as: (i) the dismissal affected Ls ability to interact with others and damaged her reputation [para [24]]; (ii) public information can implicate Article 8 when it is collected/stored by the public authorities [para [26]]; and (iii) the relevant information related to private proceedings [para [28]]. All ECRC disclosure decisions are likely to engage Article 8, as: (i) the information has been collected/stored in police records; and (ii) disclosure of relevant information is likely to diminish the subjects employment prospects. The proportionality of the proposed disclosure must be considered in each case [paras [29], [41] and [70]. The police must apply a two stage analysis, so as to consider whether: (i) the information is reliable and relevant; and (ii) in light of the public interest and the likely impact on the applicant, it is proportionate to provide the information [paras [40] and [79]]. Those who apply for positions that require an ECRC cannot be regarded as consenting to their privacy rights being violated. Consent is predicated on the basis that the right to respect for private life will be respected [para [43]]. Otherwise, legislation could easily circumvent HRA rights by effectively curtailing access to benefits unless people consent to invasions of their rights [para [73]]. The polices historic approach towards balancing the public interest in protecting vulnerable persons and respecting Article 8 rights was flawed, as they applied a general presumption that in cases of conflict the public interest should generally prevail [para [44]]. Article 8 requires that neither consideration be afforded precedence over the other each interest should be given careful consideration in assessing the proportionality of the proposed disclosure [paras [45], [63] and [85]]. Factors to be considered in assessing proportionality include: (i) the gravity of the relevant information; (ii) its reliability; (iii) its relevance; (iv) the existence of an opportunity to make representations; (v) the period that has elapsed since the relevant events; and (vi) the adverse effect of the disclosure [para [81]]. If disclosure may be: (i) irrelevant; (ii) unreliable; or (iii) out of date, the applicant should be given the opportunity to make representations prior to the decision to disclose [paras [46], [63] and [82]]. Lord Scott agreed in the result but differed in reasoning, stating that: (i) a presumption prioritising the public interest did not breach Article 8; and (ii) the consent of the applicant negated any claimed violation [paras [58] and [59]. Judgments

An extended determinate sentence (EDS) is one of the available sentences for an offender who is considered dangerous. It comprises two elements: an appropriate custodial term and the extension period for which an offender is subject to a licence. Under section 246A of the Criminal Justice Act 2003, an offender serving an EDS becomes eligible for parole after two thirds of the appropriate custodial term. By contrast, other categories of prisoners serving determinate sentences become eligible after half of their sentence. Prisoners serving certain types of indeterminate sentences (i.e. discretionary life sentences) will become eligible for parole after their specified minimum term, which is ordinarily fixed at half the determinate sentence they would have received had they not been subject to a life sentence. On 23 May 2013, the appellant was sentenced to an EDS in respect of ten counts of rape. The appropriate custodial term was fixed at 21 years, with an extension period of four years. The appellant, Mr Stott, sought judicial review of his sentence. He claimed there was no justification for the difference in treatment in relation to eligibility for parole. He claimed that this was unlawful discrimination within Article 14 of the European Convention on Human Rights (ECHR), combined with Article 5 (the right to liberty). Article 14 prohibits discrimination on any ground such as sex, race or other status. The High Court dismissed his claim, but granted a certificate permitting Mr Stott to appeal directly to the Supreme Court. It was agreed that the right to apply for early release falls within the ambit of Article 5. As to whether Article 14 applies, there are two issues. The first is whether the different treatment of Mr Stott is on a ground within the meaning of other status. The second has two parts: (a) whether EDS prisoners are in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners; and, if so, (b) whether there is an objective justification for the difference in treatment between the categories of prisoners. A majority of the Supreme Court dismisses the appeal, holding that the EDS scheme does not breach Article 14 with Article 5. Lady Black gives the leading judgment, with which Lord Carnwath and Lord Hodge agree, save on issues specified in their separate judgments. Lady Hale and Lord Mance both give dissenting judgments. Issue 1 the status issue The Court holds by a majority (Lady Black, Lord Hodge, Lady Hale and Lord Mance) that Mr Stott had the requisite status for Article 14 [81, 184, 212, 236]. In light of the European Court of Human Rights (ECtHR) decision in Clift v United Kingdom (Application No 7205/07), the Court should depart from the decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484. In that case the House of Lords had held that different treatment of a prisoner serving a sentence of 15 years or more could not be said to be on the ground of other status [70]. For the purposes of determining status, there is no real distinction between Mr Clift as a prisoner serving 15 years or more and Mr Stott as a prisoner serving an EDS [79]. Considering all the relevant case law and bearing in mind that grounds within Article 14 are to be given a generous meaning, the difference in treatment of EDS prisoners in relation to early release is a difference within the scope of Article 14, on the ground of other status [81, 185, 237]. Lord Carnwath concludes that difference of treatment of EDS prisoners is not attributable to some status for the purposes of Article 14. He would dismiss the appeal on that basis [179]. Issue 2 (a) analogous situation The Court holds by a majority (Lady Black, Lord Carnwath, Lord Hodge) that EDS prisoners are not in an analogous situation to other prisoners. The various sentencing regimes must be regarded as whole entities, each designed for particular circumstances and characteristics. The differences between the sentencing regimes are such that prisoners serving sentences under different regimes are not in analogous situations [155, 180, 195]. Lady Hale and Lord Mance (dissenting) hold that EDS prisoners are in an analogous situation to other prisoners serving determinate sentences and prisoners serving discretionary life sentences [214, 239]. Lady Hale says that for all three categories of prisoner, the most important question from their point of view is when will I get out? The essence of the right in question is liberty and for that purpose their situations are relevantly similar [214]. Issue 2 (b) objective justification The Court holds by a majority (Lady Black, Lord Carnwath, Lord Hodge) that, if EDS prisoners were in an analogous situation, the difference of treatment would be objectively justified [155, 180, 201]. The aim of the EDS provisions, which includes public protection, is legitimate [152]. As to whether the EDS scheme is a proportionate means of achieving that aim, the Court must consider each sentence as a whole. Within the framework of statutory provisions and sentencing guidelines, the sentencing judge imposes the sentence that best meets the characteristics of the offence and the offender. The early release provisions are part of the chosen sentencing regime and objective justification should be considered in that wider context [154]. The EDS is better compared to an indeterminate sentence, rather than to other types of determinate sentence. Counter balancing the indeterminate prisoners earlier eligibility for parole is the lack of any guaranteed end to his incarceration, and the life licence to which he is subjected. This undermines the argument that the difference in treatment in relation to early release is disproportionate or unfair [155]. The EDS is a separate sentencing regime that is neither arbitrary nor unlawful [200]. Lady Hale and Lord Mance (dissenting) hold that that there is no justification for insisting that an EDS prisoner stay in prison for two thirds of the custodial term appropriate to the seriousness of his offending, while a discretionary life sentence prisoner, who is likely to be even more dangerous than an EDS prisoner, would be considered for release after half of what would have been an appropriate determinate sentence [218 220, 246, 248].

Eclipse Film Partners No 35 LLP (Eclipse) filed a tax return in respect of the period which ended on 5 April 2007. HM Revenue & Customs (the Revenue) issued a closure notice determining that Eclipse did not carry on a trade or business. If correct, this would have severely adverse tax consequences for Eclipse. Eclipse appealed to the First tier Tribunal (Tax Chamber) (FTT) against the closure notice. The appeal was allocated as a Complex case under Rule 23 of the Tribunal Procedure (First Tier) (Tax Chamber) Rules 2009 and, within the 28 day period specified in Rule 23, Eclipse served a request under Rule 10(3), that the proceedings be excluded from potential liability for costs or expenses under Rule 10(1)(c). Eclipse and the Revenue agreed, and the FTT duly made, directions for the procedure leading up to the hearing of that appeal. The directions included, at paragraph 13, a direction that provided that: (i) the parties should try and agree an appropriate bundle of documents, which should be prepared by Eclipse, who were to serve three copies on the Revenue and three copies on the FTT; and (ii) if the parties were unable to agree the Bundle, each party was to prepare its own bundle of documents and serve three copies on the other party and on the FTT. As the parties were unable to agree a bundle, the FTT gave an oral direction that Eclipse prepare the bundle and that the costs be shared (the Order). Eclipse then prepared the bundle, which ran to over 700 lever arch files, in part due to the requests by the Revenue for the inclusion of documents. The FTT subsequently dismissed Eclipses appeal on the substantive tax issue. That decision was affirmed by the Upper Tribunal (the UT) on appeal, whose decision was in turn upheld by the Court of Appeal. Eclipse was refused permission to appeal to the Supreme Court on 13 April 2016. Following the hearing before the FTT, Eclipses agents sent the Revenue invoices for 108,395.48 representing half the cost of preparing the bundle. The Revenue applied to the FTT to set aside the Order on the ground that the FTT had no jurisdiction to give such a direction. The FTT dismissed the Revenues application. The Revenue appealed and the UT held that the Order was made without jurisdiction and set it aside. Eclipses appeal to the Court of Appeal on this point was dismissed. Eclipse now appeals to the Supreme Court. The Supreme Court unanimously dismisses Eclipses appeal. Lord Neuberger gives the only judgment, with which the other Justices agree. Section 29 of the Tribunals, Courts and Enforcement Act 2007 provides that the costs of proceedings in the FTT shall be in the discretion of the FTT, and that the FTT has power to make orders for costs, subject to the Tribunal Procedure Rules [2]. The rules which governed the instant proceedings are the Tribunal Procedure (First Tier) (Tax Chamber) Rules 2009 (SI 2009/273) (L1) (the Rules) [3]. Rule 5 deals with the FTTs case management powers. Rule 5(3)(i) provides that the FTT may, inter alia, by direction require a party to produce a bundle for a hearing. Rule 10 is headed Orders for costs. With one exception, the FTT can only make two types of costs order under Rule 10(1): a wasted costs order under 10(1)(a), and an order for costs where a party has behaved unreasonably under 10(1)(b). The exception is under 10(1)(c), which provides that there will be no such limitation on the FTTs jurisdiction to award costs if two conditions are satisfied: (i) that the proceedings are a Complex case under Rule 23, and (ii) that the taxpayer has not served a request, within the requisite 28 day period, that there should be no potential liability under Rule 10(1)(c) [6]. The reasoning of the Court of Appeal and the Upper Tribunal, which is reflected in the Revenues arguments before the Court, is that the FTT would have had a broad jurisdiction as to costs if no request under Rule 10(1)(c)(ii) had been served. However, because such a request was served by Eclipse, the FTT could only make an order for costs if Rules 10(1)(a) or Rule 10(1)(b) could be invoked. Neither of those provisions applied in the present case [14]. Eclipse raised two arguments in response. First, it submitted that the Order was not an order for payment of costs, but an order for the sharing of costs. The Court rejects that argument. The Order would undoubtedly involve the Revenue paying costs in the sense that they would be reimbursing Eclipse half the expenses it had incurred in preparing the bundles [15]. The second argument is that it is inherent in Rule 5(3) that the orders that the FTT makes under that provision can include terms as to costs [16]. The Court rejects that argument for a number of reasons [16]. First, Eclipses interpretation of Rule 5(3) robs Rule 10(1) of much of its force [17 18]. Secondly, Eclipses argument is inconsistent with Rules 10(3) to 10(7), which contain rules as to how any costs awarded by the FTT pursuant to Rule 10(1) are to be assessed and recovered. If there is a power to award costs under Rule 5, there would be a lacuna in the Rules because there are no such provisions governing the assessment and recovery of costs in respect of Rule 5 [19]. Thirdly, rejecting Eclipses case does not mean that the FTT cannot give permission to amend, or grant an adjournment, on terms as to costs [20]. Fourthly, there is Rule 16(2)(b), which requires the FTT to provide for the costs of a witness required to attend a hearing to be paid for one or other party. This shows that, where the Rules intend to enable or require the FTT to render a party liable for costs, they say so [21].

The appellants in these two appeals are prisoners serving sentences of life imprisonment imposed for murder, combined in the case of McGeogh with a later sentence of seven and a half years for violent escape from lawful custody. Both the appellants claim that their rights have been and are being infringed because they are not entitled to vote. United Kingdom law currently contains a general prohibition on voting by prisoners. In a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (ECtHR) has held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1 (A3P1, the duty to hold free and fair elections) of the European Convention on Human Rights (the Convention) [18 22]. The appellant Peter Chester issued a claim for judicial review in December 2008 in relation to UK and European Parliamentary elections. He relies on A3P1, as incorporated into domestic law by the Human Rights Act (the HRA), and also on European Community or now Union law (EU law). The appellant George McGeochs claim for judicial review was issued in February 2011 in relation to local and Scottish Parliamentary elections. He relies solely on EU law [1 3]. Both claims were dismissed by the courts below. The High Court and Court of Appeal held in Chesters case that it was not their role to sanction the Government for the delay in implementing the decision in Hirst (No 2) or to advise as to how the Government might implement a voting system that would be compatible with A3P1, and that EU law raised no separate issue. The Inner House dismissed McGeoghs claim on the ground that EU law only conferred a right to vote in municipal (i.e. local) elections on EU citizens residing in a Member State of which they were not nationals. The Supreme Court permitted McGeoch to add a complaint that his rights in relation to EU Parliamentary elections were also being infringed [2 3]. The issues before the Supreme Court are: (a) whether it should apply the principles established in Hirst (No 2);(b) whether, if such principles are applied, the current ban on voting is incompatible with Chesters rights under A3P1, and Supreme Court should make a further declaration of incompatibility under the HRA; (c) whether EU law recognises an individual right to vote, in terms paralleling or greater than that arising under A3P1, on which the appellants can rely upon as EU citizens claiming to vote in their own countries; and (d) what consequences would follow if EU law were to recognise an individual right to vote of this nature and, in particular, what if any relief would be available to Chester and McGeogh. The Supreme Court unanimously dismisses both appeals. Lord Mance gives the lead judgment. Lady Hale, Lord Clarke and Lord Sumption give additional judgments. With regard to claims under the Convention, the Supreme Court applies the principles in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declines to make any further declaration of incompatibility in respect of Chester [39 42]. With regard to EU law, this does not provide an individual right to vote paralleling that recognised by the ECtHR in its case law. The resolution of these appeals does not require a reference to the Court of Justice of the European Union (CJEU) [46 47, 58, 59, 63 64 and 68]. Claims under the Human Rights Act Under the HRA, the Supreme Court is required to take into account decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with A3P1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHRs caselaw [25 35]. Accepting that, on the reasoning in Hirst (No 2), Chester was a victim for the purposes of the HRA and the Convention and entitled as such to bring a claim against the respondents, that does not necessarily entitle him to any particular remedy under the HRA. A declaration of incompatibility is a discretionary remedy. The incompatibility of the prohibition on prisoner voting in the UK with the Convention is already the subject of a declaration of incompatibility made in Smith v Scott and is currently under review by Parliament. In these circumstances there is no point in making a further declaration of incompatibility. This is particularly so in the case of Chester. Given that he is serving a sentence of life imprisonment, ECtHR caselaw indicates that he would not himself have a right to benefit from any amendments to the law on prisoner voting necessary to remedy the present incompatibility of UK law with the Convention [36 42]. That is so although his tariff period has expired and he remains in detention because his detention continues to be necessary for the protection of the public. Claims under EU law The provisions on voting contained in the applicable European Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. Eligibility to vote in Member States is basically a matter for national legislatures [58 59]. The CJEU has scrutinised national eligibility criteria for conformity with the EU legal principle of non discrimination in a context where Netherlands law extended the right to vote of its nationals to nationals resident in some, but not all, non EU States. But there is no equivalent link with EU law in the present cases [60 64]. Additional EU analysis For completeness, the Supreme Court has considered the consequences if, contrary to their conclusions, EU law were to regarded as conferring an individual right to vote on which McGeoch and Chester could rely. On that hypothesis, it considers that: The EU legal principle of non discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison [65 68] In any event, the general ban on prisoner voting could not have been disapplied as a whole, and the relevant domestic legislation could not have been interpreted compatibly with EU law. Nor could the Supreme Court itself have devised a scheme compatible with EU law; that would be for Parliament. Therefore, the only relief that might have been appropriate would have been a declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the UK were inconsistent with EU law, although even that would not have appeared appropriate in the instant cases [72 74]. Neither of the appellants could have had any arguable claim for damages in respect of any breach of EU law [82 83].

The Appellants brother, who is now deceased (the Deceased), held a secure tenancy under the Housing Act 1985 (the 1985 Act) of a property owned by the London Borough of Southwark (the Authority). The Appellant contends that he lived in his brothers home for the 12 months preceding his death, caring for him during his terminal illness. The Appeal arises from the efforts of the Appellant to resist the Authoritys efforts to evict him from the property. On 4 February 1987, a conditional suspended possession order (the CSPO) was issued by the court against the Deceased on the ground he was in arrears of rent. The CSPOs terms provided that it would not become enforceable if he paid the sum due by 4 March 1987. He failed to pay by the specified deadline and so the CSPO became enforceable. However, the Authority did not take any action to evict him and he remained in the premises until his death some 18 years later, paying the rent as it became due plus sums towards the outstanding arrears. Two principal issues arise in the Appeal. Firstly, whether pursuant to s.82(2) of the 1985 Act the secure tenancy was terminated by the Deceaseds failure to pay the arrears of rent by the date specified in the CSPO so that he remained in the property as a so called tolerated trespasser; or, alternatively, whether the tenancy continued until his death, with the effect that the tenancy could transmit to the Appellant via the Deceaseds estate. Secondly, whether the statutory right of a former secure tenant to apply to the court to postpone enforcement of a possession order, pursuant to s.85(2) of the 1985 Act, terminates on the death of a tenant, or is capable of transferring to the Appellant so as to allow him to apply to the court to postpone the possession order. The Supreme Court unanimously allows the appeal, holding that the tenants right to apply to the court to postpone enforcement of a possession order, and thus revive the secure tenancy, can survive death and transmit to a successor. The case is remitted to the county court for determination of the Appellants application for postponement of the possession order. Lord Hope delivered the leading judgment and Lady Hale delivered a separate concurring judgment. The First Issue: The Effect of s.82(2) It has been assumed since the Court of Appeals decision in Thompson [1987] 1 WLR 1425 that a secure tenancy is terminated immediately upon any term of a conditional possession order being breached [Lord Hope, para [15]]. Thompson was criticised in the House of Lords decision of Knowsley [2009] AC 636. However, notwithstanding reservations concerning the merits of the decision, the House of Lords refrained from disturbing it on the basis that: (i) 20 years had elapsed and tens of thousands of cases had proceeded on the basis that it accurately stated the law; and (ii) Parliament had legislated in respect of the issue in the Housing and Regeneration Act 2008 (the 2008 Act), and had opted to change the law only with prospective effect. A subsequent judicial decision with retrospective effect would thus run contrary to the will of Parliament [Lord Hope, paras [17] [18]]. There is much to said for the view that s.82(2) should be interpreted as only terminating a secure tenancy when the possession order is actually executed: (i) the conclusion in Thompson was unsupported by reasoning and no examination was conducted of the consistency of the courts interpretation with the other provisions of the 1985 Act; (ii) subsequent references to Thompson by the House of Lords were cursory and/or uncritical and could not be regarded as lending it any great support; (iii) the 1985 Act contemplates circumstances in which a secure tenancy would remain in force notwithstanding that a conditional possession order was outstanding; and (iv) this construction would avoid the creation of so called tolerated trespassers [Lord Hope, paras [20] [23]]. However, the alternate interpretation of s.82(2) is not unarguable and so the question is whether the Supreme Court should depart from the view taken by the House of Lords in Knowsley. The House of Lords 1966 Practice Statement on departure from its own previous decisions applies equally to the Supreme Court [Lord Hope, paras [24] [25]]. For the same reasons identified in Knowsley, essentially the passage of time and the need to respect the will of Parliament as expressed in the 2008 Act, it would not be appropriate for the Supreme Court to disturb the understanding of s.82(2) that has prevailed since Thompson [Lord Hope, paras [28] [31]]. The Second Issue: The Effect of s.85(2) The effect of s.85(2) must be resolved by construing the 1985 Act as a whole. The right is created and defined by a statute and it is the legislation which determines it metes and bounds; its ambit cannot be determined by what the common law would treat as an inheritable right [Lord Hope, para [36]]. The statutory language used in s.85(2) is wide and unqualified. There is no suggestion that the power of the court to order the postponement of the enforcement of a possession order is not exercisable after the tenants death. Given the broad character of the words used, it would be reasonable to expect express provision to be made if any such limitation was intended. Moreover, there are a number of readily foreseeable circumstances in which it would be desirable for the court to exercise the power after the tenant had died. The wording of the section does not compel the conclusion that the court would be powerless to provide relief in these circumstances [Lord Hope, para [38]]. Part IV of the 1985 Act contains other indications that support this construction [Lord Hope, para [39]]. The tenants death does not prevent the court from exercising its power under s.85(2) of the 1985 Act to postpone the effect of a possession order. This preserves the discretion of the court to do what is just in all the circumstances of the case, which itself provides a protection for the landlord that would be absent if an alternate construction was adopted [Lord Hope, paras [40] [41]]. Lady Hale noted the unforeseen and undesirable consequences of the notion of tolerated trespass to which the decision in Thompson had given rise. If Parliament had not legislated in the field, in the form of the 2008 Act, then it would have been incumbent upon the Supreme Court to set the matter aright [paras [44] [56]].

This appeal arises from proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Convention establishes procedures to ensure the prompt return of children to the state of their habitual residence. The question arising is the approach that the courts of this country should take when a child is brought here pursuant to an order made abroad in Convention proceedings which is later overturned on appeal. The proceedings concern a child, K, who was born in 2006 in Texas and is a United States citizen. His father is also a US citizen; his mother came to the UK from Ghana as a very young child and she has indefinite leave to remain in the UK. They married in Texas in December 2005 and lived together there. The marriage broke up and in March 2008 the father issued divorce proceedings in the Texas state court. That court made orders by consent providing for the mother to take care of K (in the former matrimonial home) while the father was posted abroad on military service. In July 2008 she took him to London. In March 2010 a welfare based custody hearing took place in the Texas court in which both parents were represented. The judge in those proceedings decided that it was in Ks best interests that he reside with his father and have contact with his mother. As a result K moved back to the US. The mother applied to the US Federal District Court for an order under the Convention, alleging that K had been habitually resident in the UK in March 2010 and that K had been wrongfully retained in Texas by the father. This argument succeeded in the District Court in August 2011. The father complied with the order to return K and his passport to the mother, whereupon the mother returned to the UK with K and they have lived here ever since. The father appealed against the order. On 31 July 2012 the US Court of Appeals for the Fifth Circuit overturned the decision of the District Court and on 29 August 2012 the District Court ordered Ks return to the US. When the mother did not comply, the father issued applications under the Convention in the UK. He argued that the mothers retention of K in the UK was wrongful because Ks habitual residence had remained in the US. He further argued that the UK court should exercise its inherent jurisdiction to return K to the US in the circumstances of his case, even if it was not required to do so under the Convention. On 17 January 2013 the judge in the High Court dismissed the fathers applications, and his decision was upheld on appeal to the Court of Appeal. The Supreme Court granted the father permission to appeal on the grounds that K had been wrongfully retained in the UK after 29 August 2012 under the Convention and/or that the court should order his return to the US under its inherent jurisdiction. The Supreme Court unanimously allows the appeal by the father and orders the return of K to the US on the basis of the undertakings offered by the father to enable the mother to live in Texas, independently of the father and sharing the care of K between them, pending any application she might make to the Texas court to modify the order relating to Ks residence. The sole judgment is given by Lady Hale. Convention proceedings The fathers application could only succeed if K was habitually resident in the US when the US Court of Appeals overturned the earlier order of the District Court in the mothers favour. [17]. The Convention does not define habitual residence but the UK applies the concept of habitual residence adopted by most member states of the European Union, namely that it is a question of fact and corresponds to the place which reflects some degree of integration by the child in a social and family environment [20]. Parental intention plays a part in establishing or changing a childs residence and this has to be factored in with all the other relevant factors in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence [23]. In this case, the move of the mother with K to the UK in August 2011 was intended by her to be permanent and neither she nor K will have perceived it as temporary, notwithstanding the appeal. K became integrated into a social and family environment in the UK during the year before the appeal succeeded [26]. The judge was entitled to hold that K had become habitually resident in the UK by 29 August 2012 [27]. Thus the father was not entitled to an order for Ks return under the Convention. Inherent jurisdiction Under the Family Law Act 1986 the High Court has power to exercise its inherent jurisdiction in relation to children by virtue of the childs habitual residence and presence here. Before the Convention was adopted this jurisdiction was used to secure the prompt return of children who had been wrongfully removed from their home country. The existence of an order made by a competent foreign court is a relevant factor in deciding whether to exercise it [28]. The judge did not ask himself the correct question, which is whether it is in Ks best interests to remain in the UK, so that the dispute between his parents is decided here, or to return to Texas so that the dispute can be decided there. The Supreme Court is in as good a position as the judge was to answer this as he heard no oral evidence [32]. The approach and procedure of the Texan and English courts are very similar and the fathers evidence is that an application by the mother in Texas would be decided in less than three months [30, 33]. In favour of Ks remaining in the UK is the fact that he has been living here with his mother for over two years, is at school and apparently doing well [34]. In favour of return to the US is the fact that he was born in Texas, has a large extended family in the US, and has spent half his life living there, most recently in the sole care of his father, who has facilitated contact with his mother [35]. The crucial factor is that K is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. While the conflicting orders remain in force he has effectively been denied access to the US. It is necessary to restore the synthesis between the two jurisdictions which the mothers actions have distorted [36]. Despite the passage of time there is no reason to consider that K would suffer any significant harm by returning to Texas on the basis proposed by the father and accordingly the Supreme Court allows the appeal and orders Ks return on these terms. This order is to stand even if the mother chooses not to avail herself of the opportunity to return with her son [38].

These appeals raise important and difficult issues in the field of equity and trust law. Both appeals raise issues about the so called rule in Hastings Bass, which is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into account. In addition, the appeal in Pitt raises issues as to the courts jurisdiction to set aside a voluntary disposition on the ground of mistake. In 1985, Mr Mark Futter made two settlements. Initially, both settlements had non resident trustees, until, in 2004, he and Mr Cutbill, both resident in the United Kingdom, were appointed. In 2008, on the advice of solicitors, Mr Futter and Mr Cutbill, in exercise of a power of enlargement, distributed the whole capital of the first settlement to Mr Futter, and, in exercise of a power of advancement, distributed 36,000 from the second settlement to Mr Futters three children in equal shares. In so doing, they overlooked the effect of section 2(4) of the Taxation of Chargeable Gains Act 1992 (TCGA), which resulted in a large capital gains tax liability for Mr Futter, and a modest one for his children. Mr Futter and Mr Cutbill, as trustees of the two settlements, applied to have the deed of enlargement and the deeds of advancement declared void, which Norris J held them to be on the basis of the rule in Hastings Bass. In 1990, Mr Derek Pitt suffered very serious head injuries in a road traffic accident, resulting in his mental incapacity. Mr Pitts claim for damages for his injuries was compromised by a court approved settlement in the sum of 1.2m. Mr Pitts solicitors sought advice from Frankel Topping, a firm of financial advisers. They advised that the damages should be settled in a discretionary settlement. This was done in 1994 by the establishment of the Derek Pitt Special Needs Trust (the SNT). The SNT could have been established without any immediate inheritance tax liability, but it was not. The report from Frankel Topping made no reference whatsoever to inheritance tax. In 2007, Mr Pitt died. His personal representatives, who were also two of the trustees of the SNT, commenced proceedings to have the SNT set aside, which the deputy judge ordered on the basis of the rule in Hastings Bass. However, in so doing, he indicated that, even if there had been a mistake of any sort, it was only a mistake as to the consequences of the transaction, rather than its effect, and so he would not have granted rescission of the SNT. The Revenues appeals against these decisions were heard together in the Court of Appeal. Lloyd LJ (with whom Longmore and Mummery LJJ agreed) (i) allowed the appeals, principally on the ground that the rule in Hastings Bass was not applicable, because the respective trustees acted reasonably in reliance on what they supposed to be competent professional advice, (ii) dismissed Mrs Pitts appeal based on mistake, on the basis that rescission for mistake could only be granted if there was a serious mistake as to nature of a transaction, rather than its consequences, and a mistake as to tax consequences was not a sufficient mistake for the purposes of rescission. The Supreme Court unanimously (i) dismisses the appeal in Futter, and the appeal in Pitt, so far as they turn on the rule in Hastings Bass, (ii) allows the appeal in Pitt on the ground of mistake, and sets aside the SNT. Lord Walker gives the judgment, with which the other Justices agree. The rule in Hastings Bass The rule in Hastings Bass, properly understood, depends on breach of duty in the performance of something that is within the scope of the trustees powers, not in the trustees doing something that they had no power to do at all [43]. The rule is centred on the failure of trustees to perform their decision making function. It is that which founds the courts jurisdiction to intervene if it thinks fit to do so [91]. As a matter of principle there must be a high degree of flexibility in the range of the courts possible responses. To lay down a rigid rule would inhibit the court in seeking the best practical solution in the application of the rule in Hastings Bass in a variety of different factual situations [92]. For the rule in Hastings Bass to apply, the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty. It is generally only a breach of duty on the part of the trustees that entitles the court to intervene. It is not enough to show that the trustees deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way. Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention [73]. However, where trustees have been in breach of duty by exercising a discretion with inadequate deliberation, setting aside their decision may not be the only course open to the court [63]. It would be contrary to principle and authority to impose a form of strict liability on trustees who conscientiously obtain and follow, in making a decision which is within the scope of their powers, apparently competent professional advice which turns out to be wrong [80]. Such a result cannot be achieved by the route of attributing any fault on the part of professional advisers to the trustees as their supposed principals [81]. There have been, and no doubt will be in the future, cases in which small variations in the facts lead to surprisingly different outcomes. That is inevitable in an area where the law has to balance the need to protect beneficiaries against aberrant conduct by trustees (the policy behind the rule in Hastings Bass) with the competing interests of legal certainty, and of not imposing too stringent a test in judging trustees decision making [83]. Rescission on the ground of mistake The true requirement for rescission on the ground of mistake is simply for there to be a causative mistake of sufficient gravity. The test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction [122]. Consequences (including tax consequences) are relevant to the gravity of a mistake [132]. A mistake must be distinguished from mere ignorance, inadvertence, and misprediction [104]. Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false belief or assumption which the law will recognise as a mistake [105]. Mere ignorance, even if causative, is insufficient [108]. However, the distinctions may not be clear on the facts of a particular case [109]. In order to satisfy the test for setting aside a voluntary disposition on the ground of mistake, the gravity of the mistake must be assessed by a close examination of the facts. The injustice of leaving a mistaken disposition uncorrected must be evaluated objectively, but with an intense focus on the facts of the particular case [126]. The court must make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected, and form a judgment about the justice of the case [128]. Mrs Pitt had an incorrect conscious belief, or made an incorrect tacit assumption, that the proposed SNT had no adverse tax effects [133]. The SNT could have complied with statutory requirements without any artificiality or abuse of statutory relief. It was precisely the sort of trust to which Parliament intended to grant relief [134].

An implied term of the contract between a bank and its customer is that the bank owes a duty of care not to execute the customers order if it knows the order to be dishonestly given, or shuts its eyes to obvious dishonesty, or acts recklessly in failing to make inquiries. This is known as the Quincecare duty of care, following the 1992 case of Barclays Bank plc v Quincecare Ltd. The issue in this appeal is whether a claim against a bank for breach of the Quincecare duty is defeated if the customer is a company, and the fraudulent payment instructions are given by the companys Chairman and sole shareholder who is the dominating influence over the companys affairs. The respondent company (Singularis) is registered in the Cayman Islands. It was set up to manage the personal assets of Mr Maan Al Sanea. He was the sole shareholder, a director and the chairman, president and treasurer. There were six other directors but they did not exercise any influence over the management of Singularis. Sole signing powers over the companys bank accounts rested with Mr Al Sanea. In 2007 the appellant investment bank (Daiwa) provided Singularis with loan financing for the purchase of shares, which were the security for the repayment of the loan. In June 2009 the shares were sold, the loan was repaid, and Daiwa held a cash surplus of US$204m for the account of Singularis. Daiwa complied with instructions from Mr Al Sanea to pay out those funds to third parties. The payments were a misappropriation of Singularis funds and left Singularis unable to meet the demands of its creditors. On 18 September 2009 the Grand Court of the Cayman Islands made a compulsory winding up order and joint liquidators were appointed. On 18 July 2014 Singularis brought a claim against Daiwa for the full amount of the payments on the basis of (1) dishonest assistance in Mr Al Saneas breach of fiduciary duty and (2) breach of the Quincecare duty of care to Singularis by giving effect to the payment instructions. The High Court dismissed the dishonest assistance claim but held there was a clear breach of the Quincecare duty of care to Singularis, with a deduction of 25% by way of contributory negligence. Daiwas appeal against the finding of liability on the negligence claim was dismissed. Daiwa appealed to the Supreme Court. The Supreme Court unanimously dismisses Daiwas appeal and holds that the High Court order should stand. Lady Hale gives the only substantive judgment. Daiwa argued that, as Singularis was effectively a one man company, and Mr Al Sanea its controlling mind and will, his fraud should be attributed to the company, with the result that its Quincecare claim against Daiwa should fail for illegality, lack of causation or because of a countervailing claim for deceit [1]. Lady Hale agrees with the judge that whether or not Mr Al Saneas fraud was attributed to the company, those defences would fail in any event [12]: (i) Illegality The illegality relied on by Daiwa was Mr Al Saneas provision of false documents in relation to the payments and his breach of fiduciary duty towards Singularis. As the judge found, fiduciary duties are intended to protect a company from becoming the victim of the wrongful exercise of power by the companys officers. That purpose would not be enhanced by preventing the companys recovery of the money wrongfully removed from its account. The Quincecare duty strikes a careful balance between the interests of the customer and those of the bank and denying the claim would not enhance the integrity of the law [16]. Denial of the claim would undermine the public interest in requiring banks to play an important part in uncovering financial crime and money laundering [17]. It would also be an unfair and disproportionate response to any wrongdoing on the part of Singularis: the power to make a deduction for contributory negligence enables the court to make a more appropriate adjustment [18]. The judges conclusion on this issue was correct, whether or not the fraud was attributed to the company [21]. (ii) Causation Daiwa argued that if the fraud was attributed to the company, its loss was caused by its own fault and not that of the bank. However, the purpose of the Quincecare duty is to protect the banks customers from harm caused by people for whom the customer is responsible. The fraudulent instruction to Daiwa gave rise to the duty of care which Daiwa breached, thus causing the loss [23]. (iii) Countervailing claim in deceit This was a variant of the causation argument. The judge held that Daiwas breach of duty and not Mr Al Saneas misrepresentations was the cause of Daiwas exposure to the claim for Singularis loss [24]. Attribution Mr Al Saneas fraud should not however be attributed to the company for the purposes of the Quincecare claim. The basic principle was that a properly incorporated company has an identity and legal personality separate from that of its shareholders and directors. The company has to act through the medium of real human beings but the acts of those persons are only treated as the acts and intentions of the company in circumstances specified by its constitution, or the ordinary rules of agency and vicarious liability, or other particular rules of law [28]. As the judge noted, the answer to any question whether to attribute the knowledge of a fraudulent director to the company is always to be found in consideration of the context and purpose for which the attribution is relevant [34]. The context in this case is the breach of Daiwas Quincecare duty of care. To attribute the fraud of a trusted agent of the company to the company would denude the duty of any value in cases where it is most needed and be a retrograde step [35].

These appeals concern a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees. This excludes from protection any person with respect to whom there are serious reasons for considering thathe has been guilty of acts contrary to the purposes and principles of the United Nations. Both appellants have been refused the grant of refugee status by the respondent on this ground. Al Sirri is a citizen of Egypt who arrived in the UK in 1994. The facts relied on for the refusal of his asylum claim included his possession of and contribution to books connected with Al Qaeda and other proscribed organisations and his alleged involvement in the murder of General Masoud in Afghanistan in 2001. The issue raised by his case is whether all activities defined as terrorism by United Kingdom domestic law are for that reason acts falling within article 1F(c), or whether such activities must constitute a threat to international peace and security. DD is a citizen of Afghanistan who came to the UK in 2007. His claim for asylum was based on his fear of persecution as the brother of the leader of forces allied with the Taliban, who had fought against both the Afghan government and the UN mandated International Security Assistance Force (ISAF). In his case the question is whether armed insurrection against not only the incumbent government but also a UN mandated force supporting that government falls within article 1F(c). In both appeals the issue also arises as to what is meant by serious reasons for considering a person to be guilty of the act in question. The appellants appealed against the respondents refusal to grant asylum. On 18 March 2009 the Court of Appeal set aside the determination of the Asylum and Immigration Tribunal (AIT) in Al Sirris case and remitted it to be determined afresh omitting certain matters on which the respondent had sought to rely. DD was initially successful in his appeals but the Court of Appeal remitted his case for reconsideration by the Upper Tribunal because the AIT had failed to consider DDs individual responsibility and whether he fell within article 1F(c). Both appellants have nonetheless pursued an appeal to the Supreme Court in order to challenge the approach of the Court of Appeal to the interpretation of article 1F(c) in a number of respects. The Supreme Court unanimously dismisses both appeals. Both cases will now be remitted to the relevant tribunal for reconsideration in accordance with the orders of the Court of Appeal. In the case of Al Sirri the guidance given to that tribunal should be in line with the judgment of the Supreme Court. The judgment is given by Lady Hale and Lord Dyson, with whom the other justices agree. The general approach to article 1F(c) Article 1F(c) should be interpreted restrictively and applied with caution. There should be a high threshold defined by the gravity of the act in question, the manner in which the act is organised, its international objectives and its implications for international peace and security. There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character [16]. International dimension It is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning and member states are not free to adopt their own definitions. There is as yet no internationally agreed definition of terrorism. It was appropriately cautious therefore to adopt paragraph 17 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines which provided that article 1F(c) was only triggered in extreme circumstances by activity which attacks the very basis of the international communitys co existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category [36 38]. It could be enough if one person plotted in one country to destabilise another. The test was whether the resulting acts had the requisite serious effect upon international peace [40]. Armed insurrection against UN mandated forces DD had been engaged in fighting against ISAF in Afghanistan. ISAF was an armed force under the lead command of individual nations authorised by the UN from 2001, and was distinct from the United Nations Assistance Mission in Afghanistan (UNAMA), which was established in 2002 as a peacekeeping force. Both ISAF and UNAMA had the same objective to maintain peace and security in Afghanistan. DD argued that simple participation in an attack against UN mandated forces did not engage article 1F(c). The Supreme Court agreed that the protection for ISAF against attack was not the same as for peacekeeping forces. This was not however material to the issue under article 1F(c) which was to be judged under the same principle in paragraph 17 of the UNHCR Guidelines quoted above [66]. The fundamental aims and objectives of ISAF accorded with the purposes stated in the UN Charter and DD was seeking to frustrate that purpose [68]. Standard of proof This issue arose in acute form in Al Sirri. Al Sirri had been indicted at the Old Bailey in relation to the murder of General Masoud but the charge was dismissed on the ground that the evidence was as consistent with his innocence as it was with his guilt. Article 1F(c) required that there be serious reasons for considering that the asylum seeker had been guilty of the acts. This had an autonomous meaning, and was not the same as the criminal standard of proof beyond reasonable doubt, or any domestic standard. Serious reasons was stronger than reasonable grounds, strong or clear and credible evidence had to be present and the considered judgment of the decision maker was required. The reality was that there were unlikely to be sufficiently serious reasons for considering an applicant to be guilty unless the decision maker could be satisfied that it was more likely than not that he was. But the task of the decision maker was to apply the words of article 1F(c) in the particular case [75].

Prudential Assurance Company (PAC) is a test claimant in this litigation, which relates to periods running from 19902009 and concerns the tax treatment of UK resident companies that received dividends from portfolio shareholdings (i.e. where the investor holds less than 10% of the voting power in the company) in overseas companies. The key features of the tax system at the relevant time were as follows. On receiving dividends from a UK resident company, a UK resident recipient company was exempt from corporation tax under s.208 of the Income and Corporation Taxes Act 1988 (ICTA), and by s.231(1) ICTA, would receive a tax credit equal to the amount of advance corporation tax (ACT) that the distributing company had paid on the distribution. By s.238(1) ICTA, the dividend received and the tax credit together constituted franked investment income (FII) in the hands of the recipient company, which, by s.241 ICTA, could be used to eliminate or reduce its own liability to ACT on distributions (franked payments) to its own shareholders. In contrast, a UK resident company receiving dividends from an overseas company was subject to corporation tax under schedule D of ICTA (DV tax). Furthermore, it did not receive a tax credit on the dividends, which did not qualify as FII, although it could be entitled to some relief against double taxation under domestic rules, or conventions between the UK and other countries. PAC brought a claim to recover corporation tax and ACT levied contrary to EU law. Before PACs claim was heard, the Court of Justice of the European Union (CJEU) concluded in two decisions that the UKs treatment of overseas dividends was contrary to EU law in that it treated dividends received from overseas companies less favourably than dividends from UK resident companies.1 Following these decisions, the first instance judge gave two judgments in favour of PAC. The Court of Appeal dismissed HMRCs appeal against the judges conclusions on Issues I, II, III and IV below, and allowed in part their appeal on Issue V. It is common ground that PAC is entitled to an appropriate tax credit, and to repayment of any tax unlawfully charged. The current dispute concerns the amount to be awarded, which depends on issues of domestic and EU law. The Supreme Court unanimously dismisses HMRCs appeal on Issue I, allows HMRCs appeal on Issues II and III, and allows PACs cross appeal on Issue V. Lord Mance, Lord Reed and Lord Hodge give a joint judgment, with which Lord Sumption and Lord Carnwath agree. Issue I: does EU law require the tax credit to be set by reference to the overseas tax actually paid, as HMRC submit, or by reference to the foreign nominal tax rate (FNR), as PAC submits? 1 See the decision in Case C 446/04 Test Claimants in the FII Group Litigation and the Reasoned Order in Case C 201/05 Test Claimants in the CFC and Dividend Group Litigation v Revenue and Customs Comrs The Supreme Court dismisses HMRCs appeal on this issue. The CJEU jurisprudence, particularly Case C 35/11 FII ECJ II, clearly establishes that the credit for foreign dividends should be by reference to the FNR, rather than by reference to the actual or effective tax incurred overseas. There is no suggestion in the CJEU case law that any distinction is to be drawn in this respect between portfolio and non portfolio holdings [17 18, 27 28]. As a result of the Courts conclusion on Issue I, Issue IV (i.e. the construction of the domestic provisions if HMRC were to succeed on Issue I) does not arise [34]. Issue II: is PAC entitled to compound interest in respect of tax which was levied in breach of EU law, on the basis that HMRC were unjustly enriched by the opportunity to use the money in question? The Supreme Court allows HMRCs appeal on this issue. In Sempra Metals Ltd v Inland Revenue Comrs [2007] UKHL 34 a majority of the House of Lords held that a claim would lie in unjust enrichment for restitution of compound interest on money which was paid prematurely as the consequence of a mistake [43 55]. A number of developments since that decision indicate that it failed to have regard to tax legislation, created problems in the law of limitation, and caused disruption in public finances [56 67]. Furthermore, it is inconsistent with Investment Trust Companies v Revenue and Customs Comrs [2017] UKSC 29, which explained the requirement for a defective transfer of value by the claimant to the defendant. The recipients possession of money mistakenly paid to him, and his consequent opportunity to use it, is not a distinct transfer of value, additional to the payment of the money. Accordingly, there is no right to interest on the basis of unjust enrichment [68 74]. The Supreme Court therefore departs from the reasoning in Sempra Metals on this issue and rejects PACs claims to compound interest (except insofar as they were conceded by HMRC) [80]. Issue III: does a claim in restitution lie to recover lawful ACT which was set against unlawful mainstream corporation tax (MCT)?2 The Supreme Court allows HMRCs appeal on this issue, answering this question in the negative. When the lawful ACT was set against unlawful MCT, HMRC did not receive unlawfully levied tax, as required for a San Giorgio claim [98].3 If an apparent charge to MCT was unlawful, that charge was a nullity. The lawful ACT could not have been set against a nullity, but would remain available to be otherwise utilised [101 102]. Furthermore, the payment of the ACT did not entail a defective transfer of value which fell to be corrected, as required by Investment Trust Companies (above) [103]. Issue V(a): where ACT from a pool which includes unlawful and lawful ACT is utilised against an unlawful MCT liability, is the unlawful ACT regarded as a pre payment of the unlawful MCT liability or is the ACT so utilised regarded as partly lawful and unlawful pro rata? The Supreme Court allows PACs cross appeal on this issue. Unlawful ACT is treated as set first against unlawful MCT. Further, because unlawful MCT is a nullity, the unlawful ACT is recoverable unless it has been set against a lawful MCT charge [111]. Issue V(b): where domestic FII was carried back to an earlier quarter, is it to be treated as having been applied to relieve the lawful and unlawful ACT pro rata, or only lawful ACT? The Supreme Court allows PACs cross appeal on this issue. Domestic FII which is carried back to an earlier quarter is to be regarded as having been applied to relieve only lawful ACT. HMRCs pro rata approach would deprive a company of the tax credit at the FNR required under EU law [118 122].

Customs duty is usually paid around the time goods are imported. In some situations, Her Majestys Revenue and Customs (HMRC) may issue a post clearance demand to require payment at a later date. This appeal is about the time limits for making such demands under a previous version of the EUs Customs Code, Council Regulation (EEC) No 2913/92 as amended. (The issues in this appeal do not arise under the current version of the Customs Code, Council Regulation (EU) No 952/2013.) FMX imported ten consignments of garlic to the UK in 2003 and 2004. It declared the garlic came from Cambodia and claimed exemption from import duties under the EUs Generalised System of Preferences. In 2007, following an investigation, the European Anti Fraud Office (OLAF) concluded that the garlic was actually from China. If the garlic was Chinese, FMX would be liable for import duties and anti dumping duties totalling 503,577.63. In March 2011, HMRC issued a post clearance demand for 503,577.63 on the basis that the garlic originated in China. FMX argued it was too late to issue demands due to a three year time limit set out in article 221(3) of the old Customs Code. HMRC relied on article 221(4) which provides that, where the debt arises from activity which is liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three year period. The First tier Tribunal accepted the false import declarations were liable to give rise to criminal proceedings for the purposes of article 221(4) even though FMX was not involved in the underlying fraud. However, it held that HMRC could not rely on article 221(4) because the UK had no provisions in force extending the three year time limit. The Upper Tribunal disagreed and accepted HMRCs argument. It held that article 221(4) of the old Customs Code automatically displaces the three year time limit in cases involving criminality, even if the relevant member state has not enacted provisions which provide an alternative time limit. The Court of Appeal reinstated the First tier Tribunals decision, considering the Upper Tribunals approach violated the EU law principle of legal certainty and would expose taxpayers to stale demands without any time limit. HMRC appealed to the Supreme Court. The issue before the Supreme Court is (in summary) whether HMRC can rely on article 221(4) to displace the normal three year time limit even though the United Kingdom has not enacted a finite alternative time limit. The Supreme Court unanimously allows the appeal, giving judgment in favour of HMRC. Lord Briggs gives the main judgment. Lady Arden agrees the appeal should be allowed, but for different reasons. Article 221(4) states that HMRC may communicate a customs debt after the expiry of the three year period in article 221(3) if the debt results from an act which was liable to give rise to criminal court proceedings. Its purpose is to preserve the integrity of the criminal process whilst leaving the conditions (including time limits) for communication of a customs debt to each member state. Therefore, the disapplication of the three year time limit is the automatic result of the likelihood of criminal court proceedings. It does not require the selection by a member state of a different time limit [31]; [34] [36]; [51] [52]. The next question is whether this would allow HMRC to issue demands without any time limit, and whether this would breach the fundamental principle of legal certainty in EU law [38]. The majority considers a number of options suggested by the parties, and by the courts below, to mitigate the risk of late demands: (1) The domestic law doctrines of abuse of process and laches do not assist because they concern the conduct of legal proceedings, not the communication of a customs debt [39]. (2) The Limitation Act 1980 cannot be invoked because this would require the Court to disapply section 37(2)(a) of that Act (which provides that the Act does not apply to customs debts) on the basis that it was inconsistent with EU law. There is no real inconsistency with EU law because its requirement for legal certainty is adequately met by the reasonable time principle at (3) below [40] [44]; [46]. (3) There is a strand of EU jurisprudence to the effect that, where the provisions in force appear to allow legal action without any time limit, then the principle of legal certainty requires it to be done within a reasonable time: e.g. Sanders v Commission [2004] ECR II 3315 [18]; [20] [22]. The majority applies this approach and concludes that HMRC was obliged to issue its post clearance demands within a reasonable time [45]. On the facts, HMRC did act within a reasonable time [48]. Since this analysis gives a clear answer to the question how article 221(4) applies where there are no national provisions in force, it is unnecessary to make a reference to the Court of Justice of the European Union [47]. Lady Arden adopts different reasoning for allowing the appeal. She holds that the effect of EU jurisprudence concerning the old Customs Code is that EU law defers to national law and therefore does not require members states to enact a definite time limit [64]; [67]. She expresses the view that domestic public law may impose a requirement for HMRC to act within a reasonable time which may be enforced by judicial review [66] but rejects the majoritys reliance on EU decisions such as Sanders v Commission on the basis that the old Customs Code leaves the question of time limits to individual member states. This may be one of the reasons why article 221(4) has now been revised [67]. Therefore, the communication of the post clearance demand in the present case was not subject to a time limit [68] [69].

This appeal concerns the issue of whether a bribe or secret commission received by an agent is held by that agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or commission. If the bribe or commission is held on trust, the principal has a proprietary claim to it, whereas if the principal merely has a claim for equitable compensation, the claim is not proprietary. The distinction is important for two main reasons. First, if the agent becomes insolvent, a proprietary claim would give the principal priority over the agents unsecured creditors. Secondly, if the principal has a proprietary claim to a bribe or commission, he can trace and follow it in equity. On 22 December 2004, FHR European Ventures LLP purchased the issued share capital of Monte Carlo Grand Hotel SAM from Monte Carlo Grand Hotel Ltd (the Seller) for 211.5m. The purchase was a joint venture between the claimants in these proceedings, for whom FHR was the vehicle. Cedar Capital Partners LLC provided consultancy services to the hotel industry, and it had acted as the claimants agent in negotiating the purchase. Cedar accordingly owed fiduciary duties to the claimants. Cedar had also entered into an Exclusive Brokerage Agreement with the Seller, which provided for the payment to Cedar of a 10m fee following a successful conclusion of the sale and purchase of the issued shared capital of Monte Carlo Grand Hotel SAM. The Seller paid Cedar 10m on or about 7 January 2005. On 23 November 2009 the claimants began these proceedings for recovery of the sum of 10m from Cedar. The main issue at trial was whether Cedar had made proper disclosure to the claimants of the Exclusive Brokerage Agreement. Simon J found against Cedar on that issue, and made a declaration of liability for breach of fiduciary duty on the part of Cedar for having failed to obtain the claimants fully informed consent in respect of the 10m, and ordered Cedar to pay that sum to the claimants. However, he refused to grant the claimants a proprietary remedy in respect of the monies. The claimants successfully appealed to the Court of Appeal, who made a declaration that Cedar received the 10m fee on constructive trust for the claimants absolutely. Cedar now appeals to the Supreme Court on this issue. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the judgment of the court. Where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the general equitable rule (the Rule) is that he is to be treated as having acquired the benefit on behalf of his principal, so it is beneficially owned by the principal. The dispute in this case is the extent to which the Rule applies where the benefit is a bribe or secret commission obtained by an agent in breach of his fiduciary duty to his principal. While it is not possible, as a matter of pure legal authority, to identify any plainly right or plainly wrong answer to the issue of the extent of the Rule, considerations of practicality and principle support the case that a bribe or secret commission accepted by an agent is held on trust for his principal. The only point on this appeal is whether the claimants are entitled to the proprietary remedy in respect of the 10m received by Cedar from the Seller [4]. The following principles are not in doubt: 1) An agent owes a fiduciary duty to his principal because he is someone who has undertaken to act for or on behalf of his principal in a particular matter in circumstances which give rise to a relationship of trust and confidence; 2) As a result, an agent must not make a profit out of his trust, and must not place himself in a position in which his duty and his interest may conflict; and 3) A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty, by putting himself in a position where his duty to one principal may conflict with his duty to the other [5]. Another well established principle, which applies where an agent receives a benefit in breach of his fiduciary duty, is that the agent is obliged to account to the principal for such a benefit, and to pay, in effect, a sum equal to profit by way of equitable compensation [6]. The principals right to seek an account undoubtedly gives him a right in equitable compensation in respect of the bribe or secret commission, which equals the quantum of that bribe or commission. In cases to which the Rule applies, the principal has a proprietary remedy in addition to his personal remedy against the agent, and the principal can elect between the two remedies [7]. What is in dispute is the extent to which the Rule applies where the benefit is a bribe or secret commission obtained by an agent in breach of his fiduciary duty to his principal [9]. The appellant contends that the Rule should not apply to a bribe or secret commission paid to an agent, because it is not a benefit which can properly be said to be the property of the principal [10]. The respondents argue that the Rule does apply to bribes or secret commissions received by an agent, because, in any case where an agent receives a benefit, which is, or results from, a breach the fiduciary duty owed to his principal, the agent holds the benefit on trust for the principal [11]. It is not possible to identify any plainly right or plainly wrong answer to the issue of the extent of the Rule, as a matter of pure legal authority [32]. The respondents formulation of the Rule has the merit of simplicity: any benefit acquired by an agent as a result of his agency and in breach of his fiduciary duty is held on trust for the principal. In contrast, the appellants position is more likely to result in uncertainty [35]. Wider policy considerations also support the respondents case that bribes and secret commissions received by an agent should be treated as the property of his principal, rather than merely giving rise to a claim for equitable compensation. Bribes and secret commissions undermine trust in the commercial world, and one would expect the law to be particularly stringent in relation to a claim against an agent who has received a bribe or secret commission [42]. The argument that the respondents version of the Rule will tend to prejudice the agents unsecured creditors has limited force in the context of a bribe or secret commission. In the first place, the proceeds of a bribe or secret commission consists of property which should not be in the agents estate at all. Secondly, the bribe or commission will very often have reduced the benefit from the relevant transaction which the principal will have obtained, and therefore can fairly be said to be his property. Finally, it is just that a principal whose agent has obtained a bribe or secret commission should be able to trace the proceeds of the bribe or commission into other assets and to follow them into the hands of knowing recipients [43 44]. Considerations of practicality and principle support the case that a bribe or secret commission accepted by an agent is held on trust for his principal. While the position is less clear when one examines the decided cases, taken as a whole the authorities support the respondents case [46]. The cases, with the exception of Tyrrell v Bank of London (1862) 10 HL Cas 26, are consistently in favour of bribes or secret commissions being held on trust for the principal or other beneficiary until the decision in Metropolitan Bank v Heiron (1880) 5 Ex D 319, which was then followed in Lister & Co v Stubbs (1890) 45 Ch D 1. The domestic cases subsequent to Lister are explicable on the basis that the issue was either conceded, or decided on the basis that Lister was binding. The decision in Tyrrell should not stand in the way of the conclusion that the law took a wrong turn in Heiron and Lister, and that those decisions, and any subsequent decisions in so far as they relied on or followed Heiron and Lister, should be treated as overruled [47 50].

This case concerns the scope of the obligation of local authorities under s.21(1)(a) of the National Assistance Act 1948 to provide accommodation to individuals who, by reason of age, illness, disability or any other circumstance, are in need of care and attention which is not otherwise available to them. According to s.21(1A) of that Act, accommodation may not be provided under s.21(1)(a) to persons subject to immigration control if their need for care and attention has arisen solely because they are destitute or because of the physical effects, or anticipated physical effects, of destitution. SL is a failed asylum seeker from Iran. He arrived in the UK in 2006 and became homeless in October 2009. He was admitted to a psychiatric hospital following an attempted suicide in December 2009. SL was diagnosed as suffering from depression and post traumatic stress disorder. Upon discharge from hospital in April 2010, SL was assessed as needing regular sessions with mental health professionals and counselling groups, and also weekly meetings with a social worker. Westminster City Council says that it has no duty under s.21(1)(a) of the 1948 Act to provide SL with accommodation. It argues that he is not in need of care and attention for the purposes of that provision because his weekly meetings with a social worker are only a means of monitoring what, if any, care and attention he may need in the future. The council also argues that any assistance that SL may need is, in any event, otherwise available for the purposes of s.21(1)(a) because it is available to him regardless of his accommodation arrangements. The National Asylum Support Service (NASS) accepted that, if s.21(1)(a) was not applicable in this case, it would have an obligation to provide SL with accommodation. SL brought a claim for judicial review of the councils refusal to provide him with accommodation under s.21(1)(a). The High Court dismissed the claim, but the Court of Appeal reversed that decision. The council has accommodated SL pending the resolution of these proceedings. SL has since been granted indefinite leave to remain, which entitles him to a wider range of state benefits. However, the appeal was heard because it raises important questions of principle regarding s.21(1)(a). The Supreme Court allows the appeal, concluding that the Council does not owe a duty to provide SL with accommodation under s.21(1)(a) of the 1948 Act. Lord Carnwath gives the only judgment. There are three cumulative conditions which must be satisfied before s.21(1)(a) of the 1948 Act is applicable and accommodation must be provided thereunder: (i) the person in question must be in need of care and attention; (ii) the need must arise by reason of age, illness, disability or other circumstances; and (iii) the care and attention which is needed must not be available otherwise than by the provision of accommodation under s.21. The Council was reasonably entitled to take the view that the first and third of those conditions are not satisfied on the facts of this case [7, 39]. The support available from NASS is intended to be a last resort. In determining whether the conditions in s.21(1)(a) are satisfied, a local authority must disregard the support which might hypothetically be available from NASS [9]. The phrase care and attention means looking after, i.e. doing something for a person which he cannot or should not be expected to do for himself. It does not, however, cover all forms of social care and practical assistance. Care and attention for the purposes of s.21(1)(a) does not include the mere provision of physical things, even things as important as food and accommodation. The meaning of the words care and attention must take some colour from its association with the duty to provide residential accommodation. It is not confined to care and attention that can only be provided at specialised residential accommodation. However, something well beyond merely monitoring an individual is needed. The council was, therefore, entitled to conclude that the services it provided to SL do not qualify as care and attention [41 44]. The words not otherwise available in s.21(1)(a) govern care and attention not accommodation. The council was entitled to conclude that the services provided to SL were available otherwise than by the provision of accommodation under s.21 because they were entirely independent of SLs accommodation arrangements; the assistance could have been provided to SL in the same place and in the same way whether or not he had accommodation of any particular type, or at all. The Court of Appeal was wrong to read the word available in s.21(1)(a) as meaning not merely available in fact but also available in a manner that is reasonably practicable and efficacious. The acceptance of such a loose and indirect link with the provision of accommodation is not justified by the wording of s.21(1)(a). Whether the criterion of not otherwise available is satisfied in any particular case is best left to the judgment and common sense of the local authority concerned [8, 45 49].

These appeals raise questions about the availability of cross border relief and the method of quantifying such relief. For the purposes of corporation tax, Marks and Spencer plc (M&S) claim group relief in respect of losses sustained by two of their subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany, and Marks & Spencer (Belgium) NV (MSB), which was resident in Belgium. M&S began to expand its business into other countries in 1975. By the end of the 1990s it had sales outlets in more than 34 countries, with a network of subsidiaries and franchises. But by that date it had already begun to incur losses, and in March 2001 decided to withdraw from its continental European activity. It was able to sell its French and Spanish subsidiaries to third parties, but no purchasers were found for MSD or MSB. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. The claims were originally made and refused by HMRC over ten years ago. M&Ss basic contention underlying all these claims was that the provisions in UK legislation were contrary to Article 43 EC (now Article 49 TFEU) on the freedom of establishment and were therefore unlawful. The ECJ gave a preliminary ruling holding that Article 43 EC did not preclude provisions of a member state which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another member state. This case was last before the Supreme Court on 22 May 2013 when Lord Hope gave judgment on the first of five issues. The Court held that that the correct date to identify the circumstances in which it would be unlawful to preclude cross border relief for losses (the no possibilities test) was the date of the claim, not the end of the accounting period. As a consequence, one of the issues (issue 3) did not need to be answered. That left three issues: Issue 2: Can sequential/cumulative claims be made by M&S for the same losses in respect of the same accounting period? Issue 4: Does the principle of effectiveness require M&S to be allowed to make fresh pay and file claims now that the ECJ has identified the circumstances in which losses may be transferred cross border, when at the time M&S made those claims, there was no means of foreseeing the test established by the court? Issue 5: What is the correct method of calculating the losses available to be transferred? The courts below did not analyse the issues in quite that order, but they held, in essence, that the answer to issue two was yes: M&S were in principle entitled to make sequential/consequential claims in respect of the same accounting period. As to issue 4, part of which was treated as part of issue 2, they held that both the principle of effectiveness and the principle of certainty did allow M&S to make fresh pay and file claims provided that they were not time barred. However they held that such claims were time barred. As to issue 5, they preferred the method of calculation advanced by M&S to that of the HMRC. M&S appealed to this court on the time bar point, whereas the HMRC appealed on the issues on which they had lost. The Supreme Court unanimously dismisses all the appeals. Lord Clarke gives the lead judgment, with which Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agree. As a matter of domestic law, there is no support in the provisions in Part VIII of Schedule 18 to the Finance Act to support the conclusion that only one claim can be made. On the contrary, the provisions contemplate that successive claims can be made [24]. As a matter of construction of the relevant provisions, without any manipulation made necessary by the fact that the draftsman did not have cross border relief in mind, there is no support for the conclusion that only one claim can be made [27]. The legislation must also be construed so as to ensure that European Community law rights are effective in the sense that they are not practically impossible or excessively difficult to exercise and so as to ensure that the statutory code provides an effective remedy [28]. The taxpayer is entitled to advance claims for cross border relief provided that it is in time to do so [36]. The principle of effectiveness is concerned with giving effect to European Community rights. It is concerned with ensuring that such rights as a person has under Community law are recognised and given effect to in a member state which has not properly reflected such rights in its own domestic law. It was no part of that principle that a person should be given the opportunity to bring about a new state of affairs giving rise to the existence of new rights which he does not already have, in order to enforce them under Community law when they would be unenforceable under domestic law [45]. The relevant jurisprudence establishes that a member state may impose a reasonable time limit in the interests of legal certainty [46]. The relevant pay and file claims are now time barred [48]. The correct method for calculating the losses available to be surrendered is the one contended for by M&S [49]. It begins by applying the local rules to determine whether there is a loss in a particular period and, if so, the amount of the loss that remained unutilised. The unutilised loss calculated by reference to the local rules is then converted to UK principles [50]. It does not give the parent company greater relief than would have been available had its subsidiary been resident in the same state as the parent, whether in Germany or in the UK [52].

The appeal concerns the rights of the owner of a time chartered ship to payment for use of the ship and fuel by the charterer to discharge cargo after the ship has been lawfully withdrawn for non payment of hire. The appellant is the owner of the ship MT Kos. The ship was time chartered to the respondent on 2 June 2006 for 36 months. The charterparty contained a standard form of withdrawal clause entitling the owner to withdraw the vessel if the hire was not paid when due without prejudice to any claim owners may otherwise have on charterers under this contract. On 31 May 2008 the respondent failed to make the required payment and the appellant withdrew the ship on 2 June 2008. At the time of the withdrawal the MT Kos was at Angra dos Reis in Brazil and was in the process of being loaded with cargo. Over the course of 2 and 3 June, the respondent unsuccessfully sought to persuade the appellant to cancel the withdrawal. The respondent then made arrangements to unload the cargo which was already on the ship, which took until 5 June. The ship was therefore detained at Angra dos Reis for 2.64 days. Had the cargo been unloaded immediately upon withdrawal, it would have been detained for one day. The appellant claimed from the respondent the cost of the service of the ship for the 2.64 days, including bunkers (fuel) consumed in the same period, on a number of different bases: (i) the express terms of an indemnity given in clause 13 of the charterparty (ii) under the terms of a new contract made after the withdrawal (iii) on the ground of unjust enrichment, and (iv) under the law of bailment. The High Court granted the claim on the last basis alone. The Court of Appeal allowed the respondents appeal, rejecting all bases for the claim except for the recovery of the value of bunkers consumed in actually discharging the cargo. The Supreme Court unanimously allows the appeal and restores the order of Andrew Smith J in the High Court. Lord Sumption (with whom Lord Phillips, Lord Walker and Lord Clarke agree) gives the main judgment, concluding that the express indemnity in the charterparty applied on the facts of this case. Lord Mance would not have allowed the appeal on this basis but all five justices agreed with Andrew Smith J that the claim could in any event succeed under the law of bailment. The charterparty The respondent had argued that any delay or loss arising from the need to discharge the cargo was the result of the choice exercised by the appellant to withdraw. This was however morally and legally neutral [7]. Clause 13 of the contract, an employment and indemnity clause that is found in most modern forms of time charter, provided that the charterers indemnified the owners against all consequences or liabilities that arose from the master complying with the charterers or their agents orders [8]. The clause was very wide, but not unlimited [10]. It had to be read in the context of the owners obligations under the charterparty as a whole [11], and was sensitive to the legal context in which it arose. The real question was whether the respondents order to load the cargo was an effective cause (not necessarily the only one) of the appellant having to bear a risk or cost which he had not contractually agreed to bear [12] [62]. Here, the detention of the vessel in the appellants own time and at their own expense after the charter had come to an end was not an ordinary incident of the chartered service nor was it a risk that the appellant had assumed under the contract. It therefore fell within the indemnity [16]. The appellant was entitled to the market rate of hire for 2.64 days and the value of the bunkers consumed [17]. Lord Mance would not have allowed the appeal on this ground. He considered that the search was one for the proximate or determining cause [37] and that the loss suffered by the appellant was not caused by compliance with the respondents instructions but instead by the fact that the charter was at an end [51]. The fact that no cargo would have been on board but for the instructions was not the test of the proximate or effective cause. Subsequent events had superseded those instructions and rendered them a matter of history [51]. To apply the indemnity was unnecessary, the general contractual context supported a conclusion that the indemnity clause was inapt to apply [52] and its application would, in his view, open the door to uncertainty [55]. Bailment The appellant was also entitled to succeed at common law as the non contractual bailee of the cargo after the withdrawal of the vessel. The principles set out in the The Winson (China Pacific SA v Food Corpn of India) [1982] AC 939 applied: the cargo was bailed to the appellant under a contract which terminated whilst the cargo was still in its possession and the appellant could not escape the continuing duty to take reasonable care of the cargo until arrangements were made to discharge it [28]. As bailee, the appellant would be entitled to the bunkers and the opportunity cost of the ship remaining in Angra dos Reis [28]. Other bases for the claim The argument that a new contract had been made after the withdrawal turned entirely on the facts of the case and the courts below had correctly held that no such contract had been made [5]. The argument based on unjust enrichment raised larger issues which the Supreme Court decided not to address in the context of this dispute [31].

This appeal concerns the principles to be applied when a court, in considering the financial arrangements following the breakdown of a marriage, has to decide what weight should be given to an agreement between the husband and wife made before the marriage (an ante nuptial agreement, often referred to as a pre nuptial agreement). The appellant and respondent were married in London in 1998. The husband is French and the wife German. They entered into an ante nuptial agreement before a notary in Germany three months before the marriage at the instigation of the wife, to whom a further portion of her familys considerable wealth would be transferred if an agreement was signed. The agreement was subject to German law and provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. The husband, who at the time worked as a banker, declined the opportunity to take independent advice on the agreement. The parties separated in October 2006 after 8 years of marriage. They have two daughters, born in 1999 and 2002. By this time the husband had left banking and had embarked on research studies at Oxford. The husband applied to the court for financial relief. In the High Court he was granted a sum in excess of 5.5m which would afford him an annual income of 100,000 for life and allow him to buy a home in London where his children could visit him. The judge took into account the existence of the ante nuptial agreement but reduced the weight she attached to it because of the circumstances in which it was signed. The wife appealed successfully to the Court of Appeal, which held that in this case the agreement should have been given decisive weight. The husband should only be granted provision for his role as the father of the two children and not for his own long term needs. The husband appealed to the Supreme Court. The Supreme Court (by a majority of 8 to 1) dismisses the appeal. The substantive judgment is given by Lord Phillips (President), with an additional judgment from Lord Mance. Lady Hale gives a dissenting judgment. Lord Phillips observed that it used to be contrary to public policy for a couple who were married or about to be married to make an agreement which provided for the contingency that they were about to separate, on the basis that this might encourage them to do so, and the court paid no regard to them [31]. After 1957 separation agreements were given considerable weight, as increasingly were post nuptial agreements, in marked distinction to the treatment of ante nuptial agreements [42]. But the reasons for sweeping away the old rule for separation agreements applied equally to ante nuptial agreements [52]. There was not necessarily a material difference between the two [57] and the court was entitled to overrule the agreement in either case [63]. The question was how the court should approach the task of deciding what weight should be given to an ante nuptial agreement. Three issues arose in relation to the agreement in this case for the court to consider: (i) Were there circumstances attending the making of the agreement which should detract from the weight which should be accorded to it? Parties must enter into an ante nuptial agreement voluntarily, without undue pressure and be informed of its implications. The question is whether there is any material lack of disclosure, information or advice [69]. (ii) Did the foreign elements of the case enhance the weight that should be accorded to the agreement? In 1998, when this agreement was signed, the fact that it was binding under German law was relevant to the question of whether the parties intended the agreement to be effective, at a time when it would not have been recognised in the English courts. After this judgment it will be natural to infer that parties entering into agreements governed by English law will intend that effect be given to them [74] (iii) Did the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement? An ante nuptial agreement may make provisions that conflict with what a court would otherwise consider to be fair. The principle, however, to be applied is that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement [75]. A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family [77], but respect should be given to individual autonomy [78] and to the reasonable desire to make provision for existing property [79]. In the right case an ante nuptial agreement can have decisive or compelling weight [83]. Applying these principles to the facts, the Court of Appeal was correct to conclude that there were no factors which rendered it unfair to hold the husband to the agreement. He is extremely able and his own needs will in large measure be indirectly met from the generous relief given to cater for the needs of his two daughters until the younger reaches the age of 22 [120]. There is no compensation factor as the husbands decision to abandon his career in the city was not motivated by the demands of his family but reflected his own preference [121]. Fairness did not entitle him to a portion of his wifes wealth, received from her family independently of the marriage, when he had agreed he should not be so entitled when he married her [122]. Lord Mance agreed with the conclusion of the majority but, in common with Lady Hale, expressed no view on the binding or other nature of an ante nuptial agreement, which did not arise for decision. Lady Hale (dissenting) stated that modern marriage still possesses an irreducible minimum, which includes a couples mutual duty to support one another and their children. The issue in this case was how far individuals should be free to rewrite that essential feature of the marital relationship as they chose [132]. The law of marital agreements is in a mess and ripe for systematic review and reform. The Law Commission has a current project to examine the status and enforceability of agreements and can then make detailed proposals for legislative reform that Parliament can consider. That is the democratic way of achieving comprehensive and principled reform [135]. The facts of this particular case obscure the fact that the object of an ante nuptial agreement is to deny the economically weaker spouse (usually the wife) the provision to which she would otherwise be entitled [137]. The points on which Lady Hale dissents from the majority are summarised at [138] and include the upholding of the Court of Appeals decision as to the actual outcome of the case. In her view, there remain important policy considerations justifying a different approach for agreements made before and after a marriage [162]. The test to be applied by the court when considering an ante nuptial agreement should not introduce a presumption or starting point in favour of holding the parties to it: the guiding principle should be fairness in the light of the actual and foreseeable circumstances at the time when the court comes to make its order [169]. In this case the Court of Appeal appeared wrongly to treat the parties as if they had never married but only cohabited, and failed to recognise that a parent often expects to continue to be a resource for his or her grown up children [192]. Lady Hale would have varied the judges award to give greater weight to the agreement but would have granted the husband his English home for life [194].

In 2006 the appellant and his two co accused were convicted of the racially aggravated abduction and murder of a 15 year old boy. Upon being remanded in custody, from 7 October 2005 the appellant was removed from association with other prisoners and placed in solitary confinement (segregation). It was considered that the appellant and his co accused were liable to attack by other prisoners, and there were persistent fears for their safety if accommodated in mainstream conditions. Apart from a period immediately prior to and during his trial, the appellant remained in continuous segregation until 13 August 2010. Altogether he spent 56 months in segregation. The appellant was segregated pursuant to the Prisons and Young Offenders Institution (Scotland) Rules 1994 and the subsequent Prisons and Young Offenders Institution (Scotland) Rules 2006, the relevant provisions of which are identical. Rule 94 of the 2006 Rules permit a Governor to authorise segregation for up to 72 hours for the purpose of maintaining good order or discipline, protecting the interests of any prisoner, or ensuring the safety of other persons. Segregation beyond 72 hours for a further month must be authorised by the Scottish Ministers, prior to the expiry of the said period of 72 hours, on the application of a Governor. The Scottish Ministers may renew the authority for further monthly periods, again on the application of a Governor. The appellant sought orders declaring that certain periods of his segregation were in breach of the relevant Prison Rules, and that his segregation violated article 3 of the European Convention on Human Rights, the prohibition against torture, inhuman and degrading treatment, and article 8, the right to respect for private life. His judicial review challenging the lawfulness of his segregation was refused by both the Outer House and the Inner House of the Court of Session. The Supreme Court unanimously allows the appeal, granting a declarator (1) that the appellant was segregated unlawfully during three separate periods totalling 14 months; and (2) that his article 8 rights were violated. Lord Reed gives the only judgment with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree. There are three issues in the appeal: (1) whether the authorities admitted failure to comply with the time limits imposed by the Prison Rules invalidated the continued segregation; (2) whether the appellants segregation breached article 3 of the Convention; and (3) whether his segregation violated article 8. On the first issue, rule 94(5) means that segregation should not continue beyond the initial 72 hours unless the Ministers authority has been granted before the 72 hours have expired [15]. Rule 94(6) makes it clear that the Ministers authority takes effect from the expiry of the 72 hour period [16]. A late authority by the Ministers, granted after the expiry of the 72 hour period, cannot have effect [17]. This is consistent with the purpose of the legislation: to provide a safeguard for the protection of the prisoner, by ensuring that the need for segregation is reviewed within a short time by officials external to the prison and that segregation is maintained only for so long as is necessary [18]. On the three occasions when authority for the appellants segregation was granted late, that authority was invalid, and incapable of renewal. Consequently, the appellants segregation for periods totalling about 14 months lacked authorisation under the Prison Rules [28]. It is however accepted that the appellant was not prejudiced as a result [29]. On the second issue, the conditions of segregation and the measures imposed were not in themselves in breach of article 3 [32 33]. The appellant was placed in segregation in the interests of his own safety, and there was a genuine and reasonable concern that he was at risk of serious injury or worse [34]. The appellant did not suffer any severe or permanent injury to his health. The isolation he experienced was partial and relative. Whilst the duration of his segregation was undesirable, and the conditions could have been improved, the appellants segregation did not attain the minimum level of severity required for a violation of article 3 [36 37]. On the third issue, the Ministers accepted that segregation is an interference with the right to respect for private life under article 8(1). It must therefore pursue a legitimate aim, be in accordance with the law, and be a proportionate means of achieving the aim pursued [39]. The segregation pursued a legitimate aim, namely the protection of the appellants safety [40]. However, during the periods in which the appellant was segregated without valid authorisation under the Prison Rules, his segregation was not in accordance with the law [41]. Additionally, some of the decisions taken by Governors to segregate the appellant or to apply for Ministers authorisation for his continued segregation were not taken in the exercise of their own independent judgment. Instead, they proceeded on the basis that the decision had already been made by the Executive Committee for the Management of Difficult Prisoners (ECMDP), a body which was not entrusted with the power to make such a decision. This invalidated subsequent decision making by the Ministers, as their power of decision was predicated on a valid application being made to them. This breach of domestic law also results in a violation of article 8, although it does not appear to have prejudiced the appellant, as when Governors did carry out an independent assessment, they reached the conclusion that segregation was necessary to protect the appellants safety [66 73]. In relation to proportionality, the seriousness of the risk of harm required to justify segregation becomes greater as time goes by, and increased scrutiny will be applied as to whether segregation is the only means of addressing the risk [76]. Other potential accommodation options, providing reduced association and greater supervision for prisoners who remain at risk of harm, were not available in Scotland during the period in question. No consideration was given to the possibility of transferring the appellant to a prison elsewhere in the UK. No meaningful plan was put in place until the appellant had been in segregation for 55 months. Accordingly, the Scottish Ministers have failed to establish that the appellants segregation for the entire period was proportionate [83 86]. In the circumstances, just satisfaction can be afforded by making a declaratory order [89].

This is a reference by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (GWA 2006). It concerns the question of whether the Agricultural Sector (Wales) Bill 2013 is within the legislative competence of the National Assembly for Wales [1]. The Bill was passed on 17 July 2013 primarily to establish a scheme for the regulation of agricultural wages in Wales. Until 2013, the Agricultural Wages Act 1948 provided a regime for regulating agricultural wages for England and Wales under an Agricultural Advisory Panel for Wales, which was abolished by the UK Parliament under the Enterprise and Regulatory Reform Act 2013. [2]. The Welsh Government wished to retain a regime for the regulation of agricultural wages in Wales. The Welsh Assembly seeks to implement such a regime through the creation of a new Agricultural Wages Panel. It considers that it has competence to do so, relying on section 108 of and Schedule 7 to the GWA 2006. Those provisions give the Assembly competence to make legislation which relates to: Agriculture. Horticulture. Forestry. Fisheries and fishing. Animal Health and welfare. Plant health. Plant varieties and seeds. Rural development. [3] The Attorney General disagrees, submitting that, in reality, the Bill does not relate to agriculture but to employment and industrial relations, which have not been devolved to the Welsh Assembly [4]. In a judgment delivered by Lord Reed and Lord Thomas, the court unanimously concludes that the Bill falls within the competence of the Welsh Assembly. Lord Reed and Lord Thomas explain the courts decision by reference to the legislative background to the regulation of agricultural wages in the UK, and the operation of the 1948 Act in relation to Wales [8 17]. They also draw upon the development of devolution to Wales over three phases, beginning with the executive devolution secured under the under the Government of Wales Act 1998 [19 23] and culminating in the power of the Assembly to make Acts pursuant to Part 4 of, and Schedule 7 to, the GWA 2006 under a conferred powers model of devolution [28 33]. The Justices reiterate the following principles to be adopted in interpreting the GWA 2006 [5 6]: the question whether a provision is outside the competence of the Assembly must be determined according to the rules in section 108 and Schedule 7; the description of the GWA 2006 as an Act of great constitutional significance cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute; and if help is needed to what the words mean, it is proper to have regard to the purpose that lay behind the GWA 2006, namely to achieve a constitutional settlement. In interpreting section 108 and Part 1 of Schedule 7, the court explains that it cannot consider inter governmental correspondence that preceded the GWA 2006 but was never made public or disclosed to Parliament [35 39]. The fact that a power was not conferred during the first or second phases of devolution does not assist, as each of the three phases significantly increased the legislative competence of the Assembly [40 43]. The sole question is therefore whether the Bill relates to Agriculture [46]. Significantly, no one contended that any of the exceptions specified in Schedule 7, or any limitation on competence set out in any of the other provisions of the GWA 2006, applied [45]. The first issue is the meaning of Agriculture. It is clear that agriculture cannot be intended to refer solely to the cultivation of the soil or the rearing of livestock, but should be understood in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry, as it is to that broader subject matter that legislative activity is directed [47 49]. The second issue is whether the Bill relates to agriculture. As the court has previously held, relates to indicates more than a loose or consequential connection. The issue as to whether a provision relates to a subject is to be determined under section 108(7) by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances [50]. It appears from the consultation process that led to the Bill that its purpose was to regulate agricultural wages so that the agricultural industry in Wales would be supported and protected [51 52]. The legal and practical effects of the Bill are consistent with that purpose [53]. Its purpose and effect are to establish a statutory regime for the regulation of agricultural wages and other terms and conditions of employment within the agricultural industry in Wales. The purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales. Like the 1948 Act, the Bill is aptly classified as relating to agriculture [54]. Employment and industrial relations are not specified as exceptions. Although certain aspects of employment and remuneration are specified as exceptions, that suggests that there was no intention to create a more general limitation on legislative competence [59; 68]. Provided that the Bill fairly and realistically satisfies the test set out in section 108(4) and (7) and is not within an exception, it does not matter whether it might also be capable of being classified as relating to a subject which has not been devolved, such as employment and industrial relations. The legislation does not require that a provision should only be capable of being characterised as relating to a devolved subject [67]. The application of the clear test in section 108 provides for a scheme that is coherent, stable and workable [68].

Sark is an island in the Channel Islands of about 600 inhabitants. In this appeal, Sir David and Sir Frederick Barclay sought to challenge new constitutional arrangements in Sark contained in the Reform (Sark) Law 2008. Under the Reform Law, the electorate (of about 500 people) vote for 28 members of Sarks legislature, which is called the Chief Pleas. But there are two members of the Chief Pleas who are not elected. The first is the Seigneur (or Lord) of Sark, who holds a title first granted by Queen Elizabeth I in the sixteenth century. Although he may speak, the Seigneur cannot vote at any meeting of the Chief Pleas, but he does have a power temporarily to veto Ordinances of the Chief Pleas. The second is the Seneschal (or Steward), whose office was created by the Crown in the seventeenth century. The Seneschal convenes meetings of and presides over the Chief Pleas, but has no power to speak in debates or to vote. Historically, both the Seigneur and the Seneschal were able to vote in the Chief Pleas. The Barclay brothers argued that the position of the Seigneur and the Seneschal, under the new arrangements, was incompatible with Article 3 of the First Protocol to the European Convention on Human Rights, which protects the free expression of the opinion of the people in the choice of the legislature. They argued that the effect of that Article is that all members of a single chamber legislature must be elected members. An appeal was also brought by Dr Tomas Slivnik, who wanted to stand for election to the Chief Pleas. He argued that the Reform Law discriminated against him contrary to the European Convention. He said that this was because, even though he had a right to vote as a resident, he nevertheless did not have a right to stand for election as he was a citizen of Slovenia. The Supreme Court held that the unelected position of the Seigneur and the Seneschal was not incompatible with Article 3 of the First Protocol to the European Convention on Human Rights. It held also that the restriction on Dr Slivniks standing for election complied with his Convention rights. The appeals were unanimously dismissed. The leading judgment was given by Lord Collins, with whom the other Justices (Lords Hope, Scott, Brown and Neuberger) agreed. [ As to whether the position of the Seneschal and the Seigneur in the Chief Pleas of Sark, as provided for in the Reform Law, was a breach of Article 3 of the First Protocol to the European Convention on Human Rights: There was no invariable rule in Article 3 of the First Protocol that all members of a legislature had to be elected irrespective of their powers and irrespective of the circumstances [67], [70]. Until 1922 the composition of the Chief Pleas reflected the feudal system in Sark and between 1922 and 2008 the feudal Tenants dominated the Chief Pleas. Against that background, and in light generally of the constitutional history and the political factors relevant to Sark, the position of the Seigneur and the Seneschal was well within the margin of appreciation given to Contracting States to the Convention under Article 3 of the First Protocol. The free expression of the opinion of the people of Sark was not impeded by their membership of the Chief Pleas [71] [72], [74]. The Seigneurs power temporarily to veto legislation was proportionate and consistent with Article 3 of the First Protocol. In reaching that conclusion, it was legitimate to take account of the fact that the power had not been used in modern times, and that the Seigneur had indicated it would only be used in very limited circumstances [78]. The Seneschals powers were those which any presiding officer would be given or would need. His position could not realistically be said to impair the essence of the rights under Article 3 of the First Protocol [83]. As to whether the prohibition imposed by the Reform Law on persons who are aliens from standing for election to the Chief Pleas of Sark is a breach of the right under Article 3 of the First Protocol, read alone and / or in conjunction with Article 14 of the Convention: Under the European Convention, as reflected in the decisions of the Strasbourg Court and in the practice of the members of the Council of Europe, it is citizens, and not non resident aliens, who have the right to vote and stand for election. There may be some exceptions, but the general rule is clear [93]. Article 3 of the First Protocol does not require a justification for qualifications which are stricter for standing for election than for voting. Historical and political factors have determined the definition of alien in UK law. Eligibility for standing for election in Sark was limited to those with a genuine connection with Sark in the form of residence or ownership of property. It was clear that in the light of those factors and the breadth of the margin of appreciation, the exclusion of aliens from eligibility to stand for election was justifiable [95].

The issues in these appeals relate to the right to a fair trial. Alison McGarrigle had a son, Robert, by her former husband. Robert was subject to a residential supervision order requiring him to live with his father during the week but permitted him to visit his mother on Saturdays. On 14 June 1997 Robert did not return to his fathers address and instead he and his mother went to live with the appellants in a house in Largs. A drinking session took place there on or about the 20 June 1997 at which a number of people including the appellants, Robert and Mrs McGarrigle were present. The next morning she was gone and was never seen by Robert again. She was reported to police as missing on 16 February 1998. The investigation continued but in the meantime, on 17 June 1998, the appellants were convicted of sexual offences including offences against Robert McGarrigle and were sentenced to 6 and 8 years imprisonment respectively. Whilst serving their sentences the appellants were taken by police for questioning on suspicion of conspiracy to murder Alison McGarrigle. They were asked by the officers whether they were involved in her murder, but they both remained silent. Owing to a lack of evidence at that time, proceedings were not commenced against the pair. The appellants were eventually charged in 2005 for the murder of Mrs McGarrigle and remanded in custody. On 10 June 2010 the appellants were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997 and of a subsequent attempt to defeat the ends of justice by disposing of her body in the sea. In a separate trial held immediately before, the appellants were found guilty of a series of sexual offences relating to children. Both trials took place in front of the same judge, Lord Pentland, but with different juries. After the verdict in the first trial the Advocate Depute moved for sentence and handed the judge a list of the appellants previous convictions. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were evil, determined, manipulative and predatory paedophiles of the worst sort. The two issues for the Supreme Court were: (1) when the appellants were charged for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the Convention (the appellants argued that time started to run when they were first questioned in 1998 and therefore there had been a breach of their right); and (2) whether the comments and conduct of the trial judge were such as to breach the appellants right to a fair trial by an impartial tribunal in terms of article 6(1) of the Convention and, if so, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants rights under article 6(1). Both issues arose from the refusal of the Appeal Court to grant leave for the relevant grounds of appeal to be argued in the appeal in Scotland. The Appeal Court did however grant permission to appeal its refusal to the Supreme Court. The Supreme Court held that it had jurisdiction to consider the issues on the basis that they were compatibility issues in terms of the Criminal Procedure (Scotland) Act 1995 (as amended by the Scotland Act 2012), issue (1) being an appeal against a decision of the Appeal Court and issue (2) being a reference from the Appeal Court. The court determines the two compatibility issues as follows: (1) that the date when the reasonable time began for the purposes of the appellants article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocates act in proceeding with the trial on the murder charges was not incompatible with the appellants article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings will be remitted to the High Court of Justiciary [58]. Lord Hope gives the judgment of the court. The meaning of the word charged has been considered in a number of cases regarding article 6(1), which provides that in the determination of any criminal charge against him a person has the right to a fair trial within a reasonable time and article 6(3)(c) which provides a right to legal assistance for anyone charged with a criminal offence [25 32]. The focus of article 6(3)(c) is on the state of affairs when the suspect is first interrogated, as to wait until the stage is reached when there is sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This is in contrast with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. The rationale is the person should not remain too long in a state of uncertainty. Time runs from the date which the suspects position is substantially affected by the official notification. In the United Kingdom this could be some time after he is first questioned [33 34]. The date from which reasonable time begins is the subject of a separate guarantee from the guarantee that the trial will be fair and falls to be approached independently [36]. The appellants were certainly not at any stage of their interviews charged in the formal sense. They were both asked directly whether they killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that this amounted to an official notification that they were likely to be prosecuted [37]. In the absence of any evidence to show where, when and how she had died, the police were in no position to initiate criminal proceedings. In August 2003 they received information that led to further enquiries and resulted in the appellants being charged with murder in 2005 [38]. On the issue of apparent bias, the test is contained in Porter v Magill [2001] UKHL 67 and considered in a number of authorities [47 52]. It would only be if the judge expressed outspoken opinions about the appellants character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, that the fair minded and informed observer would doubt the judges ability to perform those duties with an objective judicial mind. The context indicates that nothing of the kind happened in this instance [53 54]. Furthermore, no objection was made by the defence at any point to the fact that Lord Pentland was to preside over the murder trial as well and there are no grounds for doubting his impartiality [55 56].

This appeal raises questions of European Union law. These questions have their origins in an EU Framework Agreement on part time work which was concluded in 1997. It was implemented by a Council Directive of the same year, which was extended to the United Kingdom in 1998. Directives are binding as to the result to be achieved, leaving only the choice of form and methods to the Member State. The Council Directive was transposed into UK law by the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the 2000 Regulations). In essence, the 2000 Regulations provide that a part time worker has the right not to be treated by his employer less favourably than a comparable full time worker [2, 13 and 17]. Recorders are one of several types of part time judge who are paid a fee for their work. Mr OBrien is now a retired barrister. During his practice at the bar, he sat as a recorder from 1 March 1978 until 31 March 2005. Mr OBrien claimed to be entitled to a pension in respect of his part time non salaried judicial work as a recorder on the same basis, adjusted pro rata temporis, as that paid to former full time judges who had done the same or similar work. The then Department for Constitutional Affairs (DCA) told him that he was not entitled to a judicial pension since the office of recorder was not a qualifying judicial office under the relevant UK legislation and because, under European law, he was an office holder rather than a worker [1 and 5]. Mr OBrien began proceedings in the Employment Tribunal, claiming amongst other things that he was being discriminated against because he was a part time worker. His claim was successful but the DCA (now the Ministry of Justice (MoJ)) appealed successfully to the Employment Appeal Tribunal on the grounds that Mr OBriens claim was made after the relevant time limit. The Court of Appeal allowed Mr OBriens appeal on the time limit issue but directed the Employment Tribunal to dismiss his claim, since it found that judges were not workers under the 2000 Regulations [6 and 7]. Mr OBrien appealed to the Supreme Court which, in 2010, made a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling. Because domestic law could not readily be disentangled from EU law on the issue, the Supreme Court preferred to express no concluded view on whether Mr OBrien would qualify as a worker under the 2000 Regulations until it had received guidance from the CJEU. The CJEU issued its preliminary ruling, and the matter returned to the Supreme Court. The Supreme Court is obliged under section 3(1) of the European Communities Act 1972 to determine the questions of EU law in this case in accordance with the principles laid down in the CJEUs preliminary ruling [1, 8 and 33]. As a result of the questions that were referred and of the CJEUs preliminary ruling in response to them, there were two issues before the Supreme Court: (1) whether the relationship between the MoJ and judges is substantially different from that between employers and those treated in national law as workers (the worker issue); and (2) whether the difference in treatment of recorders as compared to full time or salaried judges for the purposes of access to the retirement pension scheme is justified by objective reasons (the objective justification issue). After a hearing in July 2012, the Supreme Court ruled that Mr OBrien was a part time worker within the meaning of the Framework Agreement. The parties were heard on the objective justification issue in November 2012. The judgment of the Supreme Court sets out the reasons for its ruling on the worker issue and its reasoning and conclusions on the objective justification issue [10 12]. The Supreme Court unanimously allows Mr OBriens appeal. Recorders are in an employment relationship within the meaning of the Framework Agreement on part time work and must be treated as workers for the purposes of the 2000 Regulations. No objective justification has been shown in this case for departing from the basic principle of paying a part time worker the same as a full time worker calculated on a pro rata temporis basis. Mr OBrien is entitled to a pension on terms equivalent to those applicable to a circuit judge. The case will be remitted to the Employment Tribunal for the determination of the amount of the pension to which he is entitled. The judgment is given by Lord Hope and Lady Hale [12, 42, 75 and 76]. The CJEU stated that it was ultimately for the Supreme Court to decide the worker issue, but it set out a number of factors which the Supreme Court had to take into account, including that the term worker in the Framework Agreement is used to draw a distinction from a self employed person, which distinction is part of the spirit of the Framework Agreement. In arriving at its ruling on the worker issue, and following the guidance from the CJEU, the Supreme Court took into account the following: (1) the character of the work that a recorder does in the public service differs from that of a self employed person; (2) the rules for the appointment and removal of recorders, to which no self employed person would subject himself; (3) the way recorders work is organised for them, bearing in mind that, in common with all other part time judges, recorders are expected to work during defined times and periods; and (4) recorders entitlement to the same benefits during service, as appropriate, as full time judges [30 and 37]. Recorders are expected to observe the terms and conditions of their appointment, and they may be disciplined if they fail to do so. The very fact that most recorders are self employed barristers or solicitors merely serves to underline the different character of their commitment to the public service when they undertake the office of recorder. As the CJEU made clear, the spirit and purpose of the Framework Agreement requires a distinction between worker and self employed person. When taken together, the matters taken into account by the Supreme Court following the guidance of the CJEU really speak for themselves. In the case of part time judges, the essential distinction between the employed and the self employed can be drawn. The self employed person has the comparative luxury of independence. Part time judges are not free agents to work as and when they choose. They are not self employed persons when working in that capacity [38 40]. The Supreme Court follows the guidance given by the CJEU and the Advocate General (who presents an impartial opinion on the case to assist the CJEU) in relation to the objective justification issue. To give a greater reward to those who are thought to need it most or alternatively to those who make the greater contribution to the justice system may be legitimate aims for the MoJ. However, they ultimately amount to nothing more than blanket discriminations between the different classes of worker, which would undermine the basic principle of the Council Directive. The criteria adopted in relation to each of the MoJs stated aims are not precise and transparent. In relation to the first aim, some part timers will need pension provision as much as, if not more than, some of the full timers. In relation to the second aim, the MoJ have failed to demonstrate that fee paid part timers, as a class, make a lesser contribution to the justice system than do full timers, as a class. The proper approach to differential contributions is to make special payments for extra responsibilities. The argument also fails to take into account the benefits to the system in having a cadre of fee paid part timers who can be flexibly deployed to meet the changing demands upon it. The aim of recruiting a high quality judiciary is undoubtedly legitimate, but it applies to the part time judiciary as much as it applies to the full timers. Nor has it been shown that denying a pension to the part timers has a significant effect upon the recruitment of full timers [71 73]. The MoJs argument was essentially that if recorders receive a pension, then the pensions payable to circuit judges will have to be reduced. That is a pure budgetary consideration which depends upon the assumption that the present sums available for judicial pensions are fixed for all time. Of course there is not a bottomless fund of public money available and we are currently living in very difficult times. But the fundamental principles of equal treatment cannot depend upon how much money happens to be available in the public coffers at any one particular time or upon how the State chooses to allocate the funds available between the various responsibilities it undertakes. That argument would not avail a private employer and it should not avail the State in its capacity as an employer [74].

Section 133 of the Criminal Justice Act 1988 (s 133) provides that the Secretary of State for Justice shall pay compensation when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Article 14(6)), which the United Kingdom ratified in May 1976. Article 14(6) also refers to a miscarriage of justice. The principal issue in these appeals was the meaning of this phrase in this context; in particular whether compensation should only be given if someone was subsequently shown conclusively to have been innocent of the offence. The three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. In each case the claim was refused on the ground that the appellant had not shown that a miscarriage of justice had occurred. In Mr Adams case, it was also refused on the ground that he had not shown that his conviction had been reversed by reason of a new or newly discovered fact. Mr Adams was convicted on 18 May 1993 of the murder of Jack Royal. His conviction was referred to the Court of Appeal in 2007 on the ground that incompetent defence representation had deprived him of a fair trial. His representatives had failed to consider unused material provided by the police which would have assisted in undermining the evidence given by the sole prosecution witness. The Court of Appeal found that if this had been done the jury might not have been satisfied of Mr Adams guilt, although he would not inevitably have been acquitted. Mr McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty, and Mr MacDermott that of DC McNulty, on 12 January 1979. The sole evidence was their admissions during interviews with the police. They alleged that these had been made after ill treatment and called other witnesses who claimed to have suffered similar treatment from the same group of police officers. The judge rejected their evidence. He had been told that a prosecution brought against one of these witnesses had not been proceeded with. But he was not told that this was because senior officers in the Department of the Director of Public Prosecutions considered that he had been assaulted by police officers to obtain his confession and that a conviction in another case, based on a confession obtained in similar circumstances and involving one of the same officers, had been quashed. The Court of Appeal in Northern Ireland quashed the convictions of Mr McCartney and Mr MacDermott on 15 February 2007 on the ground that this new evidence left it with a distinct feeling of unease about the safety of their convictions. The Supreme Court unanimously dismisses the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allows the appeals of Mr MacDermott and Mr McCartney. The majority hold that a miscarriage of justice has occurred for the purposes of s 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it. Miscarriage of justice Miscarriage of justice was a phrase capable of a number of different meanings. It was useful to consider four categories of cases in which the Court of Appeal would quash a conviction on the basis of fresh evidence: Where it showed a defendant was innocent of the crime (category 1) Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (category 2) Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (category 3) Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (category 4) [9] The primary object of s133, and of Article 14(6), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime [37]. Category 4 fell outside this purpose as it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilt of the convicted person [38]. Category 3 was also outside s 133 because the miscarriage of justice had to be shown beyond reasonable doubt. Category 3 would include a significant number who had in fact committed the offences, as an inevitable consequence of a system which required guilt to be proved beyond reasonable doubt [42]. Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt. A wider scope was plainly intended at the time of the drafting of Article 14(6). Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for miscarriage of justice in s 133 (in more robust terms than category 2) was as follows: A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it [55]. A miscarriage of justice in a case of that kind would be as great as it would have been if he had in fact been innocent, because in neither case would he have been prosecuted at all [102]. Four justices dissented on this issue. Lord Judge considered that the words beyond reasonable doubt in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]. Lord Brown considered that there was no logical or principled dividing line between categories 2 and 3 [274] and the arguments in favour of an interpretation limited to category 1 were compelling [277]. Lord Rodger agreed with Lord Brown, and Lord Walker agreed with Lord Brown and Lord Judge. Application of s 133 to cases involving a retrial An amendment to s 133 (subsection 5A) which referred to a retrial changed the timetable for a claim for compensation. It did not mean that compensation was payable in every case in which a retrial had been ordered and the defendant then acquitted, as was argued by counsel for the intervener Barry George. The same test was to be applied. The amendment allowed for the possibility that something might emerge in the retrial which would require compensation [104]. New or newly discovered fact Lord Phillips (with whom Lady Hale, Lord Kerr and Lord Clarke agreed) held that the phrase new or newly discovered fact should be interpreted generously in accordance with the effect given to Article 14(6) by legislation in Ireland as including facts the significance of which was not appreciated by the convicted person or his advisers during the trial [60]. Lord Hope disagreed, considering that material disclosed to the defence by the time of the trial could not be said to be new and the focus on the state of mind of the convicted person went too far [107]. Lord Judge (with whom Lords Brown, Rodger and Walker agreed) preferred an approach which coincided with the test for admission of fresh evidence before the Court of Appeal, which required a reasonable explanation for the failure to adduce the evidence at the trial. This had been satisfied by Mr Adams in his case [281]. Disposal of the appeals Mr Adams appeal was unanimously dismissed on the ground that his was a category 3 case and did not fall within s 133. The majority allowed the appeals of Mr McCartney and Mr MacDermott as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based upon it. The minority would have remitted their cases to the Secretary of State for further consideration in the light of the judgment.

This appeal is concerned with how doctors and courts should decide when it is in the best interests of a patient, who lacks the capacity to decide for himself, for him to be given, or not to be given, treatments necessary to sustain life. The respondent hospital trust (Aintree) sought a declaration under the Mental Capacity Act 2005 in respect of the appellant, Mr James, who was admitted to hospital in May 2012. Mr James acquired an infection which was complicated by the development of chronic pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator. In the ensuing months he suffered some severe setbacks, including a stroke and recurrent infections, and his condition fluctuated. After July 2012, deterioration in his neurological state meant he was considered to lack capacity to make decisions about his medical treatment. However, he appeared to recognise and take pleasure in visits from his wife and family and his friends. In September 2012 Aintree issued proceedings in the Court of Protection seeking declarations that it would be in the best interests of Mr James for specified treatments to be withheld from him in the event of a clinical deterioration. These were painful and/or deeply physical treatments such as cardiopulmonary resuscitation (CPR). Mr James family took a different view from the clinicians, believing that, while he would never recover his previous quality of life, he gained pleasure from his present quality of life and would wish it to continue. The Mental Capacity Act Code of Practice provides that it may be in the best interests of a patient in a limited number of cases not to give life sustaining treatment where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery, even if this may result in the persons death. The trial judge interpreted these words as inapplicable to treatments which would enable Mr James to resume a quality of life which he would regard as worthwhile: they did not have to return him to full health. He held that it would not be appropriate to make the declarations sought. The Court of Appeal reversed his decision on 21 December 2012, by which time Mr James condition had deteriorated further. It held that futility was to be judged by the improvement or lack of improvement which the treatment would bring to the general health of the patient, and recovery meant recovery of a state of health which would avert the looming prospect of death. Mr James suffered a cardiac arrest and died on 31 December 2012. The Supreme Court gave his widow permission to appeal notwithstanding this, in view of the importance of the issues and the different approaches taken in the courts below to the assessment of the patients best interests. The Supreme Court unanimously holds that the trial judge applied the right principles and reached a conclusion which he was entitled to reach on the evidence before him. But the Court of Appeal were right to reach the conclusion they did on the basis of the fresh evidence before them. Technically, therefore, the appeal is dismissed. Lady Hale gives the sole judgment, with which Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes agree. S 15 of the Mental Capacity Act 2005 provides that the court may make declarations as to whether a person has or lacks capacity, and as to the lawfulness of any act done or yet to be done in relation to that person. The Act is concerned with enabling the court to do for a patient what he could do for himself if of full capacity, but goes no further. A patient cannot order a doctor to give a particular form of treatment (although he may refuse it) and the courts position is no different [18]. However, any treatment which doctors do decide to give must be lawful. Generally it is the patients consent which makes invasive medical treatment lawful [19]. If a patient is unable to consent it is lawful to give treatment which is in his best interests [20]. The fundamental question is whether it is in the patients best interests, and therefore lawful, to give the treatment, not whether it is lawful to withhold it [21]. The starting point is the strong presumption that it is in a persons best interests to stay alive [35]. In considering the best interests of a particular patient at a particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude is or would be likely to be; and they must consult others who are looking after him or interested in his welfare [39]. The judge was right to consider whether the proposed treatments would be futile in the sense of being ineffective or being of no benefit to the patient. He was right to weigh the burdens of treatment against the benefits of a continued existence, and give great weight to Mr James family life, which was of the closest and most meaningful kind [40]. He was right to be cautious in circumstances which were fluctuating [41]. A treatment may bring some benefit to a patient even if it has no effect upon the underlying disease or disability [43]. It was not futile if it enabled a patient to resume a quality of life which the patient would regard as worthwhile [44]. The Court of Appeal had been wrong to reject the judges approach. It had also been wrong to suggest that the test of the patients wishes and feelings was an objective one, namely what the reasonable patient would think. Insofar as it was possible to ascertain the patients wishes and feelings, his beliefs and values or the things which were important to him, these should be taken into account because they were a component in making the choice which was right for him as an individual human being [45]. However, by the time of the appeal there had been such a significant deterioration in Mr James condition that the time had indeed come when it was no longer in his best interests to provide the treatments. The prospect of his regaining even his previous quality of life was by then very slim. The Court of Appeal had therefore been correct to allow Aintrees appeal [46].

The issue in the case is whether the Secretary of State can continue to recoup Social Fund loans and overpayment of benefits by deduction from current benefit payments during the moratorium period after the making of a Debt Relief Order (DRO) under Part 7A of the Insolvency Act 1986 (the IA). Mrs Payne obtained a Social Fund budgeting loan in September 2007. In August 2009, she obtained a DRO listing the loan among her qualifying debts. When she notified the Secretary of State, he began making deductions from her income support. In August 2010, the moratorium period came to an end and the debt was discharged. Ms Cooper incurred an overpayment of benefit. In December 2009 the Secretary of State began making deductions from her incapacity benefit in order to recover the overpayment. In January 2010, Ms Cooper obtained a DRO which listed the overpayment as one of her qualifying debts. Section 251G(2)(a) of the IA provides that during the moratorium the creditor to whom a specified qualifying debt is owed has no remedy in respect of the debt. Mrs Payne and Ms Cooper brought judicial review proceedings challenging the lawfulness of the deductions made after the making of the DROs; their cases were consolidated. Cranston J at first instance found in their favour, holding that the power to make deductions from current benefits ceased to be available when Mrs Payne and Ms Cooper obtained the DROs. A majority of the Court of Appeal (Smith and Toulson LJJ) confirmed the High Courts decision. The Secretary of State appealed. In the context of bankruptcy, the High Court has held that such deductions can continue to be made between the making of the bankruptcy order and the bankrupts discharge from bankruptcy: R v Secretary of State for Social Security, Ex p Taylor and Chapman [1997] BPIR 505. The House of Lords reached the same conclusion in the context of Scottish bankruptcy law: Mulvey v Secretary of State for Social Security 1997 SC (HL) 105. Once a bankrupt is discharged, however, the Court of Appeal has held that the liability to repay the Secretary of State is also discharged: R (Balding) v Secretary of State for Work and Pensions [2007] EWCA Civ 1327. The Supreme Court unanimously dismisses the appeal. The leading judgment was given by Lady Hale, with whom the other justices agreed (Lord Brown and Lord Mance adding short concurring judgments). The Court holds that there is no such thing as the net entitlement principle. The claimant has a statutory entitlement to the amount of benefit which she is awarded. The liability to repay arises independently of her entitlement to any benefit from which the Secretary may later decide to recoup it [21]. The power to recover the debt by deduction from benefit is a remedy in respect of a debt which may not be exercised during the moratorium, according to section 251G(2) of the IA [22], [34]. The Court sees no reason to distinguish between the DRO scheme and bankruptcy in this respect. The Court considers that Taylor and Chapman was wrongly decided. The Secretary of State loses the power to recoup overpayments and Social Fund loans on the making of a bankruptcy order just as he does on the making of a DRO [23]. The Court affirms Balding and finds that the principle equally applies to the DRO scheme. All the liabilities to repay overpaid benefits, tax credits and Social Fund loans listed in DROs will in any event be wiped out at the end of the moratorium period [26]. The Court comments that it would be open to the Government to promote delegated legislation to exclude these liabilities from the definition of qualifying debts in the DRO scheme and to seek equivalent legislative amendment of the the bankruptcy scheme.

This appeal arises in the course of long running proceedings known as the Franked Investment Income (FII) Group Litigation. The FII Group Litigation brings together many claims concerning the way in which advance corporation tax and corporation tax used to be charged on dividends received by UK resident companies from non resident subsidiaries. The Respondents to this appeal are claimants within the FII Group Litigation whose cases have been selected to proceed as test claims on certain common issues (the Test Claimants). These issues are being determined in phases, with the courts decisions affecting not just the other claims within the FII Group Litigation, but potentially also a number of other sets of proceedings brought by corporate taxpayers against the Commissioners for Her Majestys Revenue and Customs (HMRC). The Test Claimants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached the EU Treaty provisions which guarantee freedom of establishment and free movement of capital. They seek repayment by HMRC of the tax wrongly paid, together with interest, dating back to the UKs entry to the EU in 1973. Restitutionary claims for the recovery of money must normally be brought within six years from the date on which the money was paid. As an exception to that general rule, section 32(1)(c) of the Limitation Act 1980 provides that, in respect of an action for relief from the consequences of a mistake, the limitation period only begins to run when the claimant has discovered the mistake or could with reasonable diligence have discovered it. Before the Court of Appeal, the Test Claimants argued that, where a claimant is seeking to recover money paid under a mistake of law, the effect of section 32(1)(c) is to postpone the commencement of the limitation period until such time as the true state of the law is established by a judicial decision from which there lies no right of appeal. In their cases, the Test Claimants said that this was when, in 2006, the Court of Justice of the European Union decided that relevant aspects of the UK tax regime were incompatible with EU law. HMRC argued that time instead began to run in 2001, when the Court of Justice decided that other aspects of the UK tax regime breached EU law. The Court of Appeal found in favour of the Test Claimants on this issue. On appeal to the Supreme Court, HMRC argued that section 32(1)(c) of the Limitation Act 1980 applies only to mistakes of fact and not to mistakes of law, or alternatively that the Test Claimants could reasonably have discovered their mistake more than six years before they issued their claims in 2003. On either approach, a proportion of the claims would be time barred. The Supreme Court unanimously allows the appeal, but for differing reasons. The majority (Lord Reed, Lord Hodge, Lord Lloyd Jones and Lord Hamblen) hold that section 32(1)(c) of the Limitation Act 1980 applies to claims for the restitution of money paid under a mistake of law, with time beginning to run when the claimant discovers or could with reasonable diligence have discovered their mistake in the sense of recognising that they have a worthwhile claim. It leaves the application of that test to the facts of this case for the High Court, after the parties have had an opportunity to amend their pleadings. The minority (Lord Carnwath, Lord Briggs and Lord Sales) would have held that section 32(1)(c) has no application to mistakes of law. Lord Reed and Lord Hodge give the main judgment, with which Lord Lloyd Jones and Lord Hamblen agree. Lord Briggs and Lord Sales give a partially dissenting judgment, with which Lord Carnwath agrees. Should HMRC be allowed to argue that section 32(1)(c) does not apply to mistakes of law? The Court rejects the Test Claimants various objections to HMRC arguing at this stage of the proceedings that section 32(1)(c) of the Limitation Act 1980 does not apply to mistakes of law. Cause of action estoppel is a legal doctrine which stops a party from raising points which might have been but were not raised and decided in earlier proceedings [61] [62]. As it operates only to prevent the raising of points which were essential to the existence or non existence of a cause of action, and the effect of limitation instead is to render an otherwise valid claim unenforceable, this doctrine does not prevent HMRC from making their current challenge [63]. Issue estoppel is a related legal doctrine which stops a party from raising points which were not raised in earlier proceedings or were raised unsuccessfully [64] [68]. As the question of when the limitation period commenced was not argued or determined in the first phase of the FII Group Litigation, and as it would not have been possible for HMRC to make their current limitation challenge before the lower courts, this doctrine does not prevent HMRC from making that challenge now [69]. Further, HMRCs challenge does not amount to an abuse of process, when seen in the context of group litigation which raises novel issues of unparalleled complexity, and which was the subject of case management decisions as to the order in which these issues were to be addressed [78] [79]. It is readily understandable why in the first phase of the litigation HMRC focused on arguments which, if successful, would have made it unnecessary to mount this wider challenge [80]. On the basis of those factors, as well as the substantial value of the claims, the importance of the issue to other claimants both within and outside the FII Group Litigation, and the potential to remedy any prejudice through an order for costs, the Supreme Court allows HMRC to withdraw their concession that section 32(1)(c) applies to mistakes of law, and now to make the contrary case [94] [100]. That case places in question two of the most important decisions on the law of limitation of recent times: Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2006] UKHL 49 (Deutsche Morgan Grenfell) and Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (Kleinwort Benson) [1], [172]. What is the test for the discoverability of a mistake under section 32(1)(c)? In Deutsche Morgan Grenfell, the House of Lords tied the date of discoverability of a mistake of law to the date when the truth as to whether the claimant has a well founded cause of action is established by a decision of a court of final jurisdiction [167] [170], [213]. Section 32(1)(c) cannot be intended to have that effect, as limitation periods apply regardless of whether the substance of the claim is disputed, and regardless of whether there is in truth a well founded cause of action [177] [179], [199] [202], [213]. Such an approach also has the illogical consequence that mistakes are not discoverable by a claimant until after he has issued a claim on the basis of the mistake [173] [174], and perpetuates the problems associated with distinguishing between matters of fact and matters of law [195], [213], [250]. Given those very unfortunate consequences, for which there is currently no prospect of Parliament enacting a legislative solution, it is appropriate for the Supreme Court to depart from the decision in Deutsche Morgan Grenfell in relation to discoverability [250] [253]. The correct approach is that time begins to run under section 32(1)(c) when the claimant discovers, or could with reasonable diligence discover, his mistake in the sense of recognising that a worthwhile claim arises [193], [209]. That approach brings section 32(1)(c) into line with section 32(1)(a), and with other analogous provisions of the 1980 Act [180] [196], [213]. Does section 32(1)(c) apply to mistakes of law? Section 32(1)(c) applies to mistakes of law, as the House of Lords decided in Kleinwort Benson. Although that decision was not supported by convincing reasoning [148] [161], and although when section 32(1)(c) was enacted it was not contemplated that it might extend to actions for the restitution of money paid under a mistake of law, the ordinary meaning of the words of that provision include such actions [220] [221], [242] [243]. Excluding claims based on a mistake of law would frustrate the purpose of section 32(1)(c), which is to relieve claimants from the necessity of complying with a time limit at a time when they cannot reasonably be expected to do so [220] [221], [242] [243]. Including such claims does not have unacceptable consequences for legal certainty, particularly now that the approach to discoverability in Deutsche Morgan Grenfell is departed from [225] [229], [242] [243]. How should the test for discoverability of a mistake under section 32(1)(c) be applied to the facts of this case? The Court of Appeal applied the approach to discoverability wrongly established in Deutsche Morgan Grenfell, such that HMRCs appeal must be allowed [254]. The Supreme Court cannot, however, determine in the abstract the point in time when the Test Claimants could with reasonable diligence have discovered their mistake. That question is left for the High Court to determine, after the parties have had an opportunity to amend their pleadings [255]. Dissenting judgment In their partially dissenting judgment, Lord Briggs and Lord Sales conclude that section 32(1)(c) does not apply to payments made on the basis of a mistake of law [258]. They consider that the House of Lords was wrong to decide otherwise in Kleinwort Benson [274] [285] and that the proper course now is to overrule that decision [298], [303]. Any application of section 32(1)(c) to mistakes of law which include judicial rewriting of the law is bound to risk opening up very old claims [289] across a wide range of cases [293], going well beyond the narrow equitable principle which was intended to apply [296]. This introduces large inroads into the overall purpose of the legislation by undermining legal certainty [259]. The approach taken by the majority to the issue of discoverability does not provide an adequate answer to these objections [278], [297] and could prove unfair and unworkable in practice [259], [298]. On the footing that the majoritys interpretation of section 32(1)(c) has prevailed, however, Lord Briggs and Lord Sales agree that it is appropriate to depart from the decision in Deutsche Morgan Grenfell in relation to discoverability [304].

This appeal concerns the enforcement in England of a Nigerian arbitration award dated 28 October 2004 for USD 152,195,971 plus 5m Nigerian Naira in respect of a contract by which IPCO (Nigeria) Limited (IPCO) undertook to design and construct a petroleum export terminal for Nigerian National Petroleum Corporation (NNPC). The award is subject to still outstanding challenges by NNPC in Nigeria, initially for what have been called non fraud reasons and, from 27 March 2009, for alleged fraud in relation to IPCOs presentation of its claim. The issue before the Court is whether the appellant, NNPC, should have to put up a further USD 100m security in the English enforcement proceedings. An ex parte order for enforcement made by Steel J on 29 November 2004 led to an application by NNPC to set aside under ss.103(2)(f) and 103(3) or, alternatively, for enforcement to be adjourned under s.103(5), of the Arbitration Act 1996 (the 1996 Act). On 27 April 2005, Gross J ordered that enforcement be adjourned pending resolution in Nigeria of the non fraud challenges, conditional on NNPC (i) paying IPCO USD 13.1m and (ii) putting up security of USD 50m under s.103(5). Following a further application for enforcement based on the delay in the Nigerian proceedings, and further orders including one under which a further USD 30m was provided by way of security, NNPC applied in Nigeria to raise the fraud challenge. A consent order dated 17 June 2009 was then made in the English proceedings whereby the decision on enforcement was further adjourned under s.103(5), upon NNPC undertaking to maintain the security of USD 80m thus far provided until further order. On 24 July 2012, IPCO renewed its application to enforce on the ground of the further delay in the Nigerian proceedings. This application was dismissed by Field J but allowed on appeal by the Court of Appeal, which decided to cut the Gordian knot caused by the sclerotic process of the Nigerian proceedings. The Court of Appeal ordered that (i) the proceedings be remitted to the Commercial Court for it to determine pursuant to s.103(3) whether the award should be enforced in light of the alleged fraud and (ii) any further enforcement of the award be adjourned in the meanwhile under s.103(5), such order being made conditional on NNPC providing a further USD 100m security (in addition to the USD 80m already provided). NNPC appeals against the order for security on the basis that it was made without jurisdiction or wrong in principle and/or was illegitimate in circumstances where both Field J and the Court of Appeal had concluded that NNPC had a good prima facie case of fraud entitling it to resist enforcement of the whole award. The Supreme Court unanimously allows NNPCs appeal. Lord Mance gives the lead judgment, with which all the Justices agree. Section 103(5) of the 1996 Act The Court of Appeals order was not justified by reference to s.103(5). Nothing in s.103(2) or (3) (or in the underlying provisions of article V of the New York Convention) provides a power to make an enforcing courts decision on an issue raised under these provisions conditional on an award debtor providing security in respect of the award. This is in marked contrast to s.103(5), which specifically provides that security may be ordered where there is an adjournment within its terms [24]. The Court also erred in treating its order that the English Commercial Court should decide the fraud issue as involving an adjournment of the decision on that issue within the terms of s.103(5). Section 103(5) concerns the situation where an enforcing court adjourns its decision on enforcement under s.103(2) or (3) while an application for setting aside or suspension of the award is pending before the court of the country in, or under the law of which, the award was made. It does not extend to delays in the decision making process occurring while a decision of an issue under s.103(2) or (3) is made [25 26]. Further, s.103(5) contemplates an order for security being made on the application of the party claiming recognition or enforcement of the award. The reasoning in Dardana v Yukos [2002] confirms that security pending the outcome of foreign proceedings is, in effect, the price of an adjournment which an award debtor is seeking; it is not to be imposed on an award debtor who is resisting adjournment on properly arguable grounds [27 29]. In the present case, there was no adjournment under s.103(5) onto which to hang, as the price, a requirement of further security [30 32]. The Court of Appeals further reasons for imposing the security, including as an incentive to securing finality in the context of lengthy delays, do not go to the jurisdiction or power to order security under s.103 [32]. General English procedural rules The requirement to provide security could not be justified by reference to general English procedural rules. Reliance was placed on CPR 3.1(3) and, indirectly, s.70(7) of the 1996 Act [16 21]. However, the conditions for recognition and enforcement set out in articles V and VI of the New York Convention (to which s.103(2), (3) and (5) give effect) constitute a complete code intended to establish a common international approach. Had it been contemplated that the right to have a decision of a properly arguable challenge, on a ground mentioned in article V (i.e. s.103(2) and (3)), might also be made conditional on provision of security in the amount of the award, that could and would have been said. The Convention reflects a balancing of interests. Its provisions were not aimed at improving award creditors prospects of laying hands on assets to satisfy awards. Courts have other means of assisting award creditors which do not impinge on award debtors rights of challenge, such as disclosure and freezing orders [41]. Section 70(7) provides that the court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal. It only applies, however, to arbitrations that (unlike the present) have their seat in England, Wales or Northern Ireland. The 1996 Act contains no equivalent in relation to Convention awards. Further, the power will only be exercised if the challenge appears flimsy or otherwise lacks substance, which cannot be said of NNPCs fraud challenge [43]. Finally, CPR 3.1(3) has no relevance on this appeal. It is a power, expressed in general terms, to impose conditions on orders. Its focus is the imposition of a condition as the price of relief sought as a matter of discretion or concession, and not the imposition of a fetter on a person exercising its right to raise a properly arguable challenge to recognition or enforcement [44].

Interest bearing loan notes (the notes) to the value of 660m were issued to certain companies (the Noteholders) by a special purpose vehicle formed by the Lehman Brothers group, Eurosail UK 2007 3BL (the Issuer). The Issuer used the issue of the notes to fund the purchase of a portfolio of mortgage loans, to the value of 650m, secured on residential property in the United Kingdom. The notes were issued in 5 principal classes in order of priority for repayment. Those classes run from A through to E, and comprise a total of 14 sub classes. The A notes hold highest priority, are of the highest value, and are designated either A1, A2 or A3. The final redemption date of the lowest priority notes is in 2045. The terms governing the issue of the notes (the Conditions) provide that in the event of an Event of Default, an Enforcement Notice may be served by the trustee of the Noteholders rights, namely BNY Corporate Trustee Services Ltd (the Trustee). If the Issuer becomes unable to pay its debts under the terms of section 123 of the Insolvency Act 1986 (the 1986 Act), that would constitute an Event of Default. That section provides that a company is deemed unable to pay its debts, first, if it is unable to pay those debts as they fall due or, secondly, if the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. The former is often referred to as the cash flow test, and the latter as the balance sheet test. The effect of section 123 was incorporated into the Conditions. Further, on the date on which the notes were issued, on behalf of the Noteholders the Trustee entered into an agreement (PECO) with another company (OptionCo). OptionCo was granted the option to purchase all of the notes from the Noteholders, plus the accrued interest, for a nominal consideration in the event that the Trustee determines that the Issuer is unable to pay its debts under section 123. The intended effect of this was that, in the event that the assets of the Issuer were exhausted, the remaining claims of the Noteholders against the Issuer would be assigned to OptionCo, and the Issuer would not be regarded as unable to pay its debts. The Issuer had entered into swap agreements with two of Lehman Brothers companies, with the consequence that when the latter became insolvent the Issuer suffered a significant deficiency in its net asset position, though it continued to pay its debts. The holders of the A1 and certain other of the notes had been repaid by this time. The A2 Noteholders were to have priority over A3 Noteholders in receiving repayments of principal out of sums raised by the Issuer from the redemption of mortgages in the portfolio, though those two groups would rank equally for repayment of interest. However, a finding that the Issuer was unable to pay its debts, and the consequent issuing of an Enforcement Notice, would alter this position significantly: all notes would become immediately due and payable and, importantly, A2 and A3 Noteholders would rank equally for repayment of principal. Against that background, though adopting a neutral position, the Trustee commenced these proceedings to seek a determination of whether the difficulties suffered by the Issuer constituted an Event of Default on the basis that it was unable to pay its debts within the meaning of section 123 of the 1986 Act. This appeal is therefore concerned with the construction of section 123. The Issuer and certain of the A2 Noteholders successfully argued in both the High Court and the Court of Appeal that the Issuer was not unable to pay its debts within the meaning of section 123. The Appellants, who are A3 Noteholders, argue to the contrary, and seek a stricter construction of section 123 than that which was applied by the lower courts. By way of cross appeal the Issuer renews its argument, rejected by the Court of Appeal, that in the event that the Issuer was otherwise deemed unable to pay its debts under section 123, the effect of the PECO should serve to alter that conclusion. The Supreme Court unanimously dismisses the appeals and the Issuers cross appeal. Lord Walker, with whom Lord Mance, Lord Sumption and Lord Carnwath agree, gives the lead judgment. Lord Hope gives a concurring judgment. Having regard to previous relevant legislation, to the authorities pertaining to those provisions and to section 123 of the 1986 Act itself, the enactment of section 123 should be seen as having made little significant change in the law. The changes in form therein emphasise that the cash flow test is concerned with debts falling due from time to time in the reasonably near future, in addition to those debts presently due. What is to be regarded as the reasonably near future will depend on the circumstances at hand, but especially the nature of the companys business [37]. However, once one moves beyond the reasonably near future, any attempt to apply the cash flow test will become completely speculative. In that situation, a comparison of present assets with present and future liabilities, the latter having been discounted to account for contingencies and deferment of payments, becomes the only sensible test. That is the reason for the inclusion of the balance sheet test in section 123, though it is still very far from an exact test. It is for the party asserting balance sheet insolvency to establish insolvency of that nature [37]. Whether or not the balance sheet test of insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case. In that regard, the Issuer is not engaged in normal, on going trading activities, and therefore its present assets should be a better guide to its ability to meet its long term liabilities. Against that, the impact of factors relevant to its business in the period until the final redemption rate in 2045, such as currency movements, interest rates and the economy and housing market of the United Kingdom, must be considered. However, they are a matter of speculation rather than calculation or prediction on a scientific basis [38, 49]. As the Issuers liabilities can, as matters stand, be deferred until 2045, and as it is currently paying its debts as they fall due, the Court should proceed with the greatest caution in deciding that it is in a state of balance sheet insolvency [42]. Its ability to pay all its debts, present or future, may not be finally determined until much closer to 2045. The Conditions contain several mechanisms to ensure that liabilities in respect of principal can be deferred until that date. That being so, the Court cannot be satisfied that there will eventually be an inability on the part of the Issuer to pay its debts [49]. Though it is not required to decide the point because the appeal is dismissed, PECO agreements are of importance to the securitisation market. So the Court gives reasons for its decision to dismiss the cross appeal [51]. In that regard, the intended legal and commercial effects of the PECO, having regard to the wording of the documents pertaining to the transaction as a whole, point in the same direction: they do not affect the quantification of the Issuers liabilities. The meaning to be given to the language used by the parties on this point is not open to doubt. It would not be consistent with commercial good sense to depart from it [64].

This appeal concerns the application of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention); in particular the scope of the jurisdiction conferred by article 11 in all cases of urgency on a contracting state where a child is present but not habitually resident. The 1996 Convention came into force in the United Kingdom on 1 November 2012 and has not previously been considered by the Supreme Court. The subject of the proceedings is a child, called Saleem in the judgment, who was born in January 2007. His parents are both from Morocco and hold Moroccan and British citizenship. The parents lived in England when Saleem was born but moved first to Saudi Arabia in 2009 and then to Morocco in 2011. The marriage broke down in December 2011. Saleem lived with his mother, who was granted residential custody by the local Family Court in 2012. His father was granted and exercised visiting rights. Saleems mother moved to England in January 2013 but Saleem remained in the care of his maternal grandparents until 14 September 2013, when the mother brought Saleem to England. Since then he has lived here with her and her new husband, whom she married in January 2013 and with whom she now has another child. Saleems father has had no face to face contact with him since. Saleems father applied on 23 September 2013 to the Moroccan Family Court for an order granting him residential custody of Saleem but this was refused on 16 January 2014. On 14 March 2014 the father brought proceedings in the High Court seeking an order that Saleem be made a ward of court and directions for his summary return to Morocco. The judge found that the father had not consented to the removal of Saleem from Morocco, which was wrongful, and that Saleem had been habitually resident in Morocco before his removal. He ordered the mother to return Saleem to Morocco. It was not argued before him that the effect of the 1996 Convention was that he had no jurisdiction to make the order he did. The mother appealed to the Court of Appeal, which held that the English courts did not have jurisdiction under the 1996 Convention, or on any other basis, on the facts of this case. In cases where a child was habitually resident in another state, as in Saleems case, jurisdiction only arose in cases of urgency under article 11. This was not such a case because the father could have made an immediate application to the Moroccan court for a return order. The Supreme Court unanimously allows the appeal, holding that it is open to the English courts to exercise the article 11 jurisdiction in cases of wrongful removal under the 1996 Convention, and it orders that the case be returned to the High Court for a decision as to whether it is appropriate to do so in the circumstances of this case. Lady Hale, with whom the other justices all agree, gives the only substantive judgment. The focus of the 1996 Convention is on the care and upbringing of the child and an order for the return of a child to the country of his or her habitual residence is a measure of protection falling within its scope [23]. Jurisdiction in wrongful removal cases remains with the authorities of the contracting state in which the child was habitually resident immediately before the removal (article 7) and article 11 supplies an additional jurisdiction to the courts of the territory where the child is present in the limited circumstances of cases of urgency [26]. An order made under article 11 can have extra territorial effect and can thus be contrasted with the purely ancillary power in article 20 of the Brussels II Revised Regulation [26 29]. It is not limited to cases of wrongful removal but extends to safeguarding children who are lawfully present in another country [30]. It can secure a valuable soft landing for children whose return to their home country is ordered under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Convention) [31]. It would place these objectives in jeopardy if the courts could not invoke the article 11 jurisdiction without first assuring themselves that it was impossible for the courts of the home jurisdiction to take action [32]. In the absence of this pre condition, the interpretation of article 11 demands a holistic approach. It is consistent with the overall purpose of the 1996 Convention that measures of protection which the child needs now should not be delayed, provided they are in support of rather than in opposition to the jurisdiction of the home country. It is a secondary, not the primary jurisdiction [33 34]. Although this approach does not emerge from either the Explanatory Report of Paul Lagarde in 1996 or from the Practical Handbook on the operation of the 1996 Convention, they should not be treated as if they were words in the Convention, and the focus of both is orders in the context of proceedings for abduction governed by the 1980 Convention, rather than cases to which the 1980 Convention does not apply [39]. An abduction case governed solely by the 1996 Convention is not invariably one of urgency but it is difficult to envisage a case in which the court should not consider it to be so and go on to consider whether it is appropriate to exercise the article 11 jurisdiction. The courts of the country where the child is present are often better placed to make orders about the childs return, as they can take steps to locate the child and exert any necessary coercive powers. The machinery of obtaining and then enforcing orders made by the home country may be cumbersome and slow. The childs interests may be compromised if the country where he or she is present is not able to take effective action in support of their return [39]. Accordingly the appeal is allowed. It is not right, however, simply to restore the judges order for return. The case should be returned to him for a new decision approached on the proper footing, namely whether the English court should exercise the jurisdiction conferred by article 11 of the 1996 Convention and, if so, in what way. The question will be answered on the basis of up to date information about Saleem and, if necessary, about Moroccan law, and attention can also be given to the important question of whether an order for interim contact between Saleem and his father should be made [41 44].

This case concerns the circumstances in which a court may make an order retrospectively declaring that steps taken by a claimant to bring a claim form to the attention of a defendant should be treated as good service. On 30 April 2009, Mr Abela and his two companies brought a claim for damages for fraud against Mr Baadarani in connection with a contract for the purchase of shares in an Italian company which the appellants contend were worthless, or were worth far less than the amount for which they were purchased. In September 2009, permission was granted for the claim form and all other documents to be served on Mr Baadarani at an address at Farid Trad Street in Beirut, Lebanon. No relevant bilateral treaty on service of judicial documents existed between the UK and Lebanon, and the Hague Service Convention was not applicable. Time for serving the claim form was extended until 31 December 2009 and permission was granted, if necessary, to serve Mr Baadarani personally at the Farid Trad Street address. The appellants gave evidence that they had used a notary to seek to serve Mr Baadarani at the Farid Trad Street address by instructing a service agent or clerk to attend that property over a period of four consecutive days. Mr Baadarani could not, however, be found. He denies that he has ever lived at the Farid Trad Street address. On 22 October 2009 a copy of the claim form and other relevant documents were delivered to the offices of Mr Baadaranis Lebanese lawyer in Beirut, Mr Azoury. That method of service had not been authorised by the judge and it is accepted it that was not good service under Lebanese law; Mr Azoury said that he had never been given instructions to accept service of documents on behalf of Mr Baadarani save in connection with certain Lebanese proceedings. Mr Azoury gave no indication of where Mr Baadarani could be served. Arabic translations of the relevant documents were delivered to the Foreign Process Section of the High Court in November 2009 together with certified translations. The appellants were informed in December 2009 that service on Mr Baadarani in Lebanon via diplomatic channels could take a further three months. In April 2010, Lewison J extended time for service of the claim form and granted permission for the claim form to be served on Mr Baadarani by alternative means, namely via his English or Lebanese solicitors. An application by the appellants that the steps already taken to serve Mr Baadarani be treated as good service was adjourned. Service was subsequently effected by alternative means on Mr Baadarnis English solicitors in May 2010. Mr Baadarani applied to set aside the various orders that had been made to extend time for service of the claim form and also sought to set aside the order permitting alternative service via Mr Baadaranis English and Lebanese solicitors. That application did not need to be determined because Sir Edward Evans Lombe made a declaration at the request of the appellants, pursuant to rules 6.37(5)(b) and/or 6.15(2) of the Civil Procedure Rules (CPR), that the steps taken on 22 October 2009 constituted good service of the claim form. The Court of Appeal reversed that decision and held that the various extensions of time for service of the claim form should not have been granted. The claim was, therefore, dismissed. Mr Abela and the other appellants appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Clarke gives the leading judgment. CPR 6.15(2) can be used retrospectively to validate steps taken to serve a claim form even if the defendant is not within the jurisdiction [21, 22]. Orders under CPR 6.15(1) and (2) can be made only if there is good reason to do so. The judges conclusion that there was a good reason to make an order under 6.15(2) constituted a value judgment based on an evaluation of a number of different factors. An appellate court should be reluctant to interfere with such a decision [23]. The Court of Appeal was wrong to say that the making of an order under CPR 6.15(2) in a service out case is an exorbitant power. It is not appropriate to say that such an order may only be made in exceptional circumstances, at any rate in a case in which there is no danger of subverting any international convention or treaty. The test under CPR 6.15(2) is simply whether there is good reason to make such an order. [33, 34, 45, 53]. CPR 6.15(2) applies only in cases where none of the methods of services permitted by CPR 6.40(3) have been successfully adopted, including any method of service permitted by the law of the country in which the defendant is to be served. A claimant seeking an order under CPR 6.15(2) is not, therefore, required to show that the method of service used was good service under local law. The Court of Appeal was, in any event, wrong to say that the judge had concluded that service of the documents on Mr Azoury was good service under Lebanese law; if the judge had reached that conclusion, there would have been no reason for him to make an order under CPR 6.15(2) [24, 32, 46]. The only bar to the use of CPR 6.15(2), if otherwise appropriate, is the rule, under CPR 6.40(4) that nothing in a court order may authorise any person to do anything which is contrary to the law of the country where the claim form is to be served. Although delivery of the claim form and other documents to Mr Azoury was not good service on Mr Baadarani under Lebanese law, it has not been suggested that it was contrary to Lebanese law [24]. The mere fact that the defendant learned of the existence and content of the claim form cannot without more, constitute a good reason to make an order under CPR 6.15(2). That is, however, a critical factor. Service has a number of purposes, but the most important is to ensure that the contents of the document served are communicated to the person served. [36]. The fact that a claimant has delayed before issuing the claim form is not, save perhaps in exceptional circumstances, relevant when determining whether an order should be made under CPR 6.15(2). The focus must be on the reason why the claim form cannot or could not be served be served within the period of its validity [48]. The judge was entitled to conclude that an order under CPR 6.15(2) was appropriate. The judge correctly took account of the fact that Mr Baadarani, through his English and Lebanese lawyers, was fully apprised of the nature of the claim being brought against him. The claim form and other documents were delivered to him within the initial period of validity of the claim form. He also took account of the fact that service in Lebanon via diplomatic channels had proved impractical and that Mr Baadarani was unwilling to cooperate by disclosing his address to the appellants. Whilst Mr Baadarani had no obligation to disclose his address, his refusal to cooperate was a highly relevant factor in determining whether there was a good reason to make an order under CPR 6.15(2). The judge was entitled to take the view that an order under CPR 6.15(2) was appropriate notwithstanding the three and a half month delay between the issue of the claim form and the application for permission to service the claim out of the jurisdiction, and despite the fact that the claim against Mr Baadarani may be time barred [37, 39, 40].

The question in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration (CANH), which is keeping a person with a prolonged disorder of consciousness (PDOC) alive, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. In June 2017 Mr Y, an active man in his fifties, suffered a cardiac arrest which consequently led to extensive brain damage due to lack of oxygen. He never regained consciousness following the cardiac arrest and required CANH to keep him alive. His treating physician concluded that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remining life. A second opinion from a consultant and professor in Neurological Rehabilitation considered Mr Y to be in a vegetative state without prospect of improvement. Mrs Y and their children believed that he would not wish to be kept alive given the doctors views about his prognosis. The clinical team and the family agreed that it would be in Mr Ys best interests for CANH to be withdrawn, which would result in his death within two to three weeks. On 1 November 2017, the NHS Trust sought a declaration in the High Court that it was not mandatory to seek the courts approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patients family agreed that it was not in the patients best interests to continue treatment and that no civil or criminal liability would result if CANH were withdrawn. The High Court granted a declaration that it was not mandatory to seek court approval for withdrawal of CANH from Mr Y where the clinical team and Mr Ys family were in agreement that continued treatment was not in his best interests. The judge granted permission to appeal directly to the Supreme Court. In the intervening period Mr Y died but the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised by the case. The Supreme Court unanimously dismisses the appeal. Lady Black gives the sole judgment with which the other Justices agree. It has not been established that the common law or the European Convention on Human Rights (ECHR) give rise to the mandatory requirement to involve the court to decide upon the best interest of every patient with PDOC before CANH can be withdrawn [126]. The fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patients best interests. If a doctor carries out treatment in the reasonable belief that it will be in the patients best interests, he or she will be entitled to the protection from liability conferred by section 5 of the Mental Capacity Act (MCA) 2005 [92]. The starting point on whether there is a common law requirement to seek a court order is the House of Lords decision in Airedale NHS Trust v Bland [1993] A.C. 789. However, there can be no question of the House of Lords in that case having imposed a legal requirement that in all cases of patients in a persistent vegetative state an application must be made to court before CANH can be withdrawn. Instead they recommended as a matter of good practice that reference be made to the court [93 94]. Therefore, when the MCA 2005 came into force in 2007 there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH and the MCA itself did not single out any class of decisions which must always be placed before the court [95]. The MCA 2005 Code of Practice (the Code) does speak of applications to court in cases such as the present but does so in a contradictory fashion on the issue of whether such applications are mandatory [97]. Further, no requirement to apply to court can be found in the post MCA 2005 case law [98]. The ECHR does not generate a need for an equivalent provision to be introduced [102]. The European Court of Human Rights (ECtHR) decision in Lambert v France 62 EHRR 2 and subsequent cases have repeatedly set out factors relevant to the administering or withdrawing of medical treatment. These are factors which the UK has complied with. First, the UK has a regulatory framework compatible with the requirements of article 2 in the form of the combined effect of the MCA 2005, the Code, and professional guidance, particularly that of the GMC [105]. Second, the MCA 2005 requires doctors to take into account the patients express wishes and those of people close to him, as well as the opinions of other medical personnel [108]. Third, the opportunity to involve the court is available whether or not a dispute is apparent [109]. Lambert and subsequent decisions show that the ECtHR does not regard it as problematic, in principle, that a decision to remove CANH from a patient with PDOC should be made by a doctor without obligatory court involvement [110]. CANH is medical treatment and it is not easy to explain, therefore, why it should be treated differently from other forms of life sustaining treatment [116]. In any event, it is difficult to accept that one can delineate patients with PDOC from other patients in such a way as to justify judicial involvement being required for the PDOC patients but not the others. In all cases, the medical team make their treatment decisions by determining what is in the patients best interest [119]. If it transpires that the way forward is finely balanced, there is a difference of medical opinion, or a lack of agreement from persons with an interest in the patients welfare, a court application can and should be made [125].

These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (the Convention), and whether the code published by the Director of Public Prosecutions (the DPP) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Until 1961 suicide was a crime in England and Wales and encouraging or assisting a suicide was therefore also a crime. By section 1 of the Suicide Act 1961, suicide ceased to be a crime. However, section 2 of that Act (Section 2) provided that encouraging or assisting a suicide remained a crime, carrying a maximum sentence of 14 years in prison, but that no prosecutions could be brought without the permission of the DPP. Section 2 was amended by Parliament in 2009, but its basic effect remains unchanged. Following a decision of the House of Lords in 2009, the DPP published Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide (the 2010 guidelines) setting out his policy in relation to prosecutions under Section 2. In the first appeal, Mr Nicklinson suffered a catastrophic stroke some nine years ago, since when he was completely paralysed, save that he could move his head and his eyes. For many years, he had wanted to end his life, but could not do so without assistance, other than by self starvation, a protracted, painful and distressing exercise. He wanted someone to kill him by injecting him with a lethal drug, but if necessary he was prepared to kill himself by means of a machine invented by a Dr Nitschke which, after being loaded with a lethal drug, could be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer. Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his right to a private life under article 8 of the Convention (Article 8). The High Court refused Mr Nicklinson both forms of relief; he then declined all food and died of pneumonia on 22 August 2012. Mr Nicklinsons wife, Jane, was then added as a party to the proceedings and pursued an appeal. Mr Lamb was added as a claimant in the Court of Appeal. Since a car crash in 1991, Mr Lamb has been unable to move anything except his right hand. His condition is irreversible, and he wishes to end his life. He applied for the same relief sought by Mr Nicklinson. The Court of Appeal dismissed the appeal brought by Mr Nicklinson and Mr Lamb. In the second appeal an individual known as Martin suffered a brainstem stroke in August 2008; he is almost completely unable to move and his condition is incurable. Martin wishes to end his life by travelling to Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. Martin began proceedings seeking an order that the DPP should clarify, and modify, his the 2010 Policy to enable responsible people such as carers to know that they could assist Martin in committing suicide through Dignitas, without the risk of being prosecuted. Martins claim failed in the High Court, but his appeal was partially successful, in that the Court of Appeal held that the 2010 Policy was not sufficiently clear in relation to healthcare professionals. Mrs Nicklinson and Mr Lamb have appealed to the Supreme Court in the first appeal and the DPP has appealed and Martin has cross appealed in the second appeal. The Supreme Court, by a majority of seven to two dismisses the appeal brought by Mr Nicklinson and Mr Lamb. It unanimously allows the appeal brought by the DPP, and dismisses the cross appeal brought by Martin. Each of the nine Justices gives a judgment. On the first appeal, the Supreme Court unanimously holds that the question whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdoms margin of appreciation, and is therefore a question for the United Kingdom to decide. Five Justices (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) hold that the court has the constitutional authority to make a declaration that the general prohibition on assisted suicide in Section 2 is incompatible with Article 8. Of those five, Lord Neuberger, Lord Mance and Lord Wilson decline to grant a declaration of incompatibility in these proceedings, but Lady Hale and Lord Kerr would have done so. Four Justices (Lord Clarke, Lord Sumption, Lord Reed and Lord Hughes) conclude that the question whether the current law on assisting suicide is compatible with Article 8 involves a consideration of issues which Parliament is inherently better qualified than the courts to assess, and that under present circumstances the courts should respect Parliaments assessment. On the second appeal, the Supreme Court unanimously allows the DPPs appeal. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case are all proper and constitutionally necessary features of the system of prosecution in the public interest. In light of the Supreme Courts conclusion on the second appeal, Martins cross appeal does not arise. The first appeal: is the present law on assisting suicide incompatible with Article 8? The Supreme Court unanimously holds that, according to the case law of the European Court of Human Rights, the question whether to impose a general ban on assisted suicide lies within the margin of appreciation of the United Kingdom [66, 154, 218, 267, 339]. Whether the current law is incompatible with Article 8 is, therefore, a domestic question for the United Kingdom courts to decide under the Human Rights Act 1998. It is also the unanimous view of the court that Section 2 engages Article 8, as it prevents people who are physically unable to commit suicide without assistance from determining how and when they should die. Accordingly, it can only be a justified interference if it satisfies the requirements of Article 8(2), ie that it is necessary in a democratic society for one or more of the purposes specified in that article, which in the present context would be for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others [79, 159, 216, 335]. Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson hold that, within the constitutional settlement of the United Kingdom, the court has the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide [76, 191, 299, 326]. Lord Neuberger, Lord Mance and Lord Wilson conclude that, while the question of assisted suicide is a difficult, sensitive and controversial issue on which great significance will be attached to the judgment of the democratically informed legislature, this does not mean that the legislative judgment is necessarily determinative [76, 191]. However, while the sensitive and controversial nature of this issue does not justify the court ruling out the possibility that it could make a declaration of incompatibility, it would be inappropriate for a court to decide whether Section 2 is incompatible with Article 8 before giving Parliament the opportunity to consider the position in the light of this judgment [116]. The main justification advanced for an absolute prohibition on assisted suicide is the perceived risk to the lives of vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so [81, 171]. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way would arguably provide greater and more satisfactory protection for the vulnerable, than a system which involves a lawyer from the DPPs office inquiring, after the event, whether the person who had killed himself or herself had such a wish [108, 186]. The interference with Mr Nicklinsons and Mr Lambs Article 8 rights is grave and the arguments in favour of the current law are by no means overwhelming [111]. However, even had it been appropriate to issue a declaration of incompatibility at this time, Lord Neuberger, Lord Mance and Lord Wilson would not make a declaration in these proceedings. In the courts below the main focus was on Mr Nicklinsons submissions that necessity should be recognised as a defence to murder, whereas before the Supreme Court the case advanced was that a machine like Dr Nitschkes would offer a feasible means of suicide for those who have an autonomous wish but require assistance to do so. They are not confident that the court has the necessary evidence on, or that the courts below or the Secretary of State has had a proper opportunity to address, this issue [119 121, 153]. Lady Hale and Lord Kerr would have issued a declaration of incompatibility. It is clear that Article 8 confers a right on an individual to decide by what means and at what point his or her life will end, provided that he or she is capable of freely reaching a decision. They hold that, in making no exception for those whose expressed wish to die reflects an autonomous desire rather than undue pressure, the current ban on assisting suicide is incompatible with Article 8 [300, 326]. Lady Hale draws attention to the similarity between a procedure for identifying those who have made such an autonomous decision but require some help to carry it out and other life and death decisions currently made in the Family Division of the High Court and the Court of Protection. Lord Kerr emphasises that when courts make a declaration of incompatibility, they do precisely what Parliament, through the Human Rights Act 1998, has empowered them to do, and remit the issue to Parliament for a political decision informed by the courts view of the law [343]. The remission of the issue to Parliament does not involve the court making a moral choice which is properly within the province of the democratically elected legislature [344]. Lord Kerr would also hold that there was no rational connection between the aim of Section 2(1) and the interference with the Article 8 right [350]. Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke accept that the courts have jurisdiction under the Human Rights Act to determine whether the current universal ban on assisting suicide is compatible with Article 8, but consider that the question turns on issues which Parliament is in principle better qualified to decide, and that under present circumstances the courts should respect Parliaments assessment. The question requires a judgment about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from direct or indirect pressure to do so. It is unlikely that the risk of such pressure can ever be wholly eliminated. Therefore the real question is how much risk to the vulnerable is acceptable in order to facilitate suicide by others who are free of such pressure or more resistant to it. This involves important elements of social policy and a moral value judgment, which are inherently more suitable for decision by Parliament as the representative organ of the constitution. This is for three reasons: (1) the issue involves a choice between two fundamental but mutually inconsistent moral values, the sanctity of life and the principle of autonomy, which are sensitive to a societys most fundamental collective moral and social values and upon which there is no consensus in our society, (2) Parliament has made the relevant choice on a number of occasions in recent years, and (3) the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas in a manner which allows all interests and opinions to be expressed and considered [228 232]. The second appeal: is the 2010 Policy lawful? The Supreme Court unanimously allows the DPPs appeal. Section 2(4) of the Suicide Act 1961 precludes any prosecution of a person who has allegedly contravened Section 2 without the DPPs consent [39]. It is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy [141]. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, are all proper and constitutionally necessary features of the system of prosecution in the public interest [249, 271]. During these proceedings, counsel for the DPP indicated that under the 2010 Policy a stranger who is not profiteering from his or her action, but assisting to provide services which, if provided by a close relative, would not attract a prosecution, was most unlikely to be prosecuted. The Director will be able to consider further whether that indication should stand and whether, if so, the 2010 Policy needs amendment, without it being appropriate to order her to undertake any such review [146, 193, 251 and 323]. In light of the courts conclusion on the second appeal, Martins cross appeal does not arise. Further observations Lord Sumption summarises [255(2), (3) and (4)] the principal respects in which the law already allows for the alleviation of suffering in the terminally ill, in view of the fact that they appear to be widely misunderstood. These paragraphs are specifically endorsed by Lord Neuberger [137], Lady Hale [324] and Lord Mance [194].

The central issue on this appeal is whether the Government of Pakistan was a party to and bound by an arbitration agreement, so that an award made by an arbitral tribunal under that agreement can be enforced against the Government of Pakistan in the United Kingdom. The appellant company (Dallah) is a member of a group providing services for the Holy Places in Saudi Arabia. In July 1995, it concluded a Memorandum of Understanding with the respondent Government (the Government) for the provision by Dallah of housing for pilgrims. In January 1996 the Awami Hajj Trust (the Trust) was established and subsequently continued by various ordinances of the President of Pakistan. In September 1996, after Dallah put forward a revised proposal which differed from the Memorandum of Understanding and after further negotiations with the Government, an agreement between Dallah and the Trust was signed (the Agreement). The Agreement contained an arbitration clause, whereby any dispute between Dallah and the Trust arising out of the Agreement was to be settled by arbitration. In December 1996, the ordinances lapsed and were not renewed, and Trust ceased to exist as a legal entity. Dallah invoked arbitration against the Government in May 1998. On 23 June 2006 an International Chamber of Commerce arbitral tribunal sitting in Paris made an award in favour of Dallah in the sum of US$20,588,040 against the Government. Dallah applied to the High Court in England for leave to enforce the award in this country. The award was an award within the meaning of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Article V(1)(a) of the Convention and s.103 of the Arbitration Act 1996, which transposes Article V(1)(a) in the UK, provide that enforcement of an award may be refused if the arbitration agreement was not valid under the applicable law, which is the case, in particular, if the person against whom enforcement is sought was not a party to the agreement. The applicable law was in this case French law, where the arbitral tribunal sat and made its award. The High Court held that the Government was not a party to the Agreement or therefore to the arbitration agreement and refused leave to enforce the award. The Court of Appeal upheld the decision and Dallah appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Government was not a party to the arbitration agreement. An initial issue was the status and weight of the arbitral tribunals own decision that it had jurisdiction, based on its conclusion that the Government was a party to the Agreement and so to the arbitration agreement. The Supreme Court, while recognising that a tribunal has jurisdiction to determine its own jurisdiction for its own purposes, held that a court, whether within the country where the tribunal is located or within a foreign country where an attempt is made to enforce the award, can and must revisit the question of jurisdiction. The arbitral tribunal could only have jurisdiction by consent, and could not give itself jurisdiction, if there was no relevant consent under the applicable law. Whether consent exists is an issue subject to ordinary judicial determination. Article V of the Convention safeguards the right of a party which has not agreed to arbitration to object to the jurisdiction of the tribunal. The language of Article V(1)(a) of the Convention and s.103(2)(b) of the 1996 Act requires the English court to revisit the tribunals decision on jurisdiction where the person resisting enforcement maintains that it was not party to any relevant arbitration agreement under the applicable law. [26] [31]; [79] [104] The central issue in the case was whether the Government could establish that, applying French law principles, there was no common intention on the part of the Government and Dallah, such as would make the Government a party to the Agreement. The Court held that the Government had established that there was no such common intention, having regard amongst other matters to: The clear change in the proposed transaction from an agreement with the Government (the Government was a party to the initial Memorandum of Understanding) to an agreement with the Trust. [134] The deliberate structuring of the Agreement to be between Dallah and the Trust: the Governments only role under the Agreement was to guarantee the Trusts loan obligations and to receive a counter guarantee from the Trust. Further, Dallah was throughout the transaction advised by lawyers who must have understood the difference between an agreement with a State entity and an agreement with the State itself. [42] [43]; [133] [136] The fact that the Trust was established as a body corporate capable of holding property and of suing and being sued. [135] The fact that it was the Trust which commenced proceedings against Dallah in Pakistan in 1997. [137] A final issue in the case concerned the nature and existence of any discretion to be found in Article V(1) and s.103(2), which provide that recognition or enforcement of the award may be refused if the arbitration agreement is proved to be invalid. Dallah submitted that even if the Government could prove that it is not bound by the Agreement, the Court should exercise its discretion under Article V(1) and s.103(2) to enforce the award. The Court refused to do this, saying that, in the absence of some fresh circumstance such as another agreement, it would be remarkable if the word may enabled a court to recognise or enforce an award which it found to have been made without jurisdiction. [68]