Category: News

In re X (A Child) (Surrogacy: Time Limit): FD 3 Oct 2014

Extension of Time for Parental Order

The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the applicants) had separated for a short time.
Held: The time limit might be extended.
Sir James Munby said: ‘Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.’
Given the importance of the issue for the child, the court is bound to adopt a more lenient approach than in Adesina.

Judges:

Sir James Munby P FD

Citations:

[2014] EWHC 3135 (Fam), [2015] 1 Fam 186, [2015] 2 WLR 745, [2015] 1 FLR 349, [2014] Fam Law 1681, [2014] WLR(D) 410, [2015] 1 FAM 186

Links:

Bailii, WLRD

Statutes:

Human Fertilisation and Embryology Act 2008 54(1)(c)

Jurisdiction:

England and Wales

Citing:

Cited – Howard v Bodington Carc 27-Feb-1877
Imperative or Directory Statutory Requirements
The court considered the consequences of a failure to comply with a statutory requirement.
Held: The distinction drawn between statutory requirements which were ‘imperative’ on the one hand and ‘directory’ on the other involved unfortunate use . .
Cited – In re X and Y (Foreign Surrogacy) FD 9-Dec-2008
The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the . .
Cited – In Re S (Parental Order) FD 2009
Hedley J considered a Californian surrogacy arrangement in which USD $23,000 was paid.
Held: Hedley J considered the issue of authorisation in respect of a payment for a commercial surrogacy arrangement and set out further the approach the . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – In re L (A Minor) (Commercial Surrogacy) FD 8-Dec-2010
The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to . .
Cited – Dharmaraj v London Borough of Hounslow CA 24-Jan-2011
The claimant challenged the respondent’s finding that he had been intentionally homeless and therefore not entitled to emergency housing assistance. He said that the Authority had failed to comply with the required procedure.
Held: Toulson LJ . .
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
Cited – G v G (Parental Order; Revocation) FD 11-May-2012
The commissioning father of a child born through a surrogacy agreement made an application for the revocation of a parental order on the grounds that, first, the order had been wrongly made by reason of numerous procedural defects and, secondly, it . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Distinguished – Adesina and Others, Regina (on The Application of) v The Nursing and Midwifery Council CA 9-Jul-2013
The court was asked as to the effect of a statutory provision stating that an appeal to the High Court from the Nursing and Midwifery Council ‘must be brought before the end’ of a specified period of 28 days. There was no express provision . .
Cited – In re A and B (Parental Order: Domicile) FD 14-Feb-2013
. .
Cited – J v G FD 26-Mar-2013
Application for a parental order under the 2008 Act following a surrogacy arrangement in California, USA using IVF. . .
Cited – Re C (A Child), AB v DE FD 15-May-2013
Application for a parental order in relation to a child C born in 2012 under section 54 of the 2008 Act 2008. A parental order had been made, and the judge now gave his reasons. C was conceived through IVF treatment in Moscow, with the First . .
Cited – Newbold and Others v The Coal Authority CA 23-May-2013
Appeal by the Coal Authority against an order declaring that notices of subsidence damage were valid damage notices for the purposes of section 3 of the 1991 Act.
Held: Sir Stanley Burnton said: ‘In all cases, one must first construe the . .
Cited – Khakh v Independent Safeguarding Authority CA 6-Nov-2013
The 2006 Act provided that the judge in the Crown Court ‘must inform the person at the time he is convicted’ that his name would be included on the statutory barring lists. The judge had failed to do so. The claimant objjcted to the inclusion of his . .
Cited – In re WT (A Child) FD 4-Mar-2014
Theis J said: ‘A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period.’ . .
Cited – JP v LP and Others FD 5-Mar-2014
Applications were made for orders under section 8 after and informal surrogacy arrangement. The child was now 33 weeks old.
Held: King J said: ‘When the matter came before the High Court it was agreed by all parties . . s54(3) says that the . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
Cited – Re J (Adoption: Non-Patrial) CA 1998
The court considered an adoption in Pakistan which was valid in Pakistan but would not be recognised here. The natural father and the adoptive father were from the same family. The adoptive parents were unable to have a children of their own, and . .

Cited by:

Cited – In re D (a Child) FD 31-Oct-2014
The two parents sought to challenge a decision that their child should be taken into care. Each parent had learning difficulties, but their income though small precluded the grant of legal aid. They wished to appeal against final care orders, but . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 11 October 2022; Ref: scu.537335

Her Majesty’s Advocate v Coulson: HCJ 1 Jun 2015

Note. The accused faced a charge of perjury. In an earlier trial, itself for perjury, the defender (the first defender), acting without legal representation had called the now accused to give evidence as to whether accused, as editor of the News of the World, had known that his staff were hacking the first defender’s telephones. The accused had denied it. The Crown now alleged that this denial was false, and charged him with perjury. He argued that the claim was irrelevant because any perjury was not as to an issue central to the case or as to ceridibility.
Held: Despite holding an evidential hearing for the purpose, the crown had quite failed to bring evidence as to the relevance of the charge.

Judges:

Lord Noble

Links:

Scot Courts

Jurisdiction:

Scotland

Citing:

Cited – Lord Advocate’s Reference (No 1 of 1985) HCJ 1986
The Court a claim as to the relevancy of an indictment of perjury.
Held:
Lord Justice General Emslie said: ‘All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 03 August 2022; Ref: scu.547554

Regina v Patel: 7 Nov 2014

Crown Court at Southwark. Remarks of Singh J on the sentencing of the defendant for acquiring a biological toxin, namely Abrin. A first package had been obained via a website, but was discarded. He sought a second package, but by then the seller had been arrested and US police conducted negotiations and he in turn was arrested.
Held: This was the first time an offence under the section of the Act had come for sentencing. 3 years was imposed.

Judges:

Singh J

Links:

Judiciary

Statutes:

Biological Weapons Act 1974 1

Criminal Sentencing, News

Updated: 04 May 2022; Ref: scu.538535

Belhaj and Another v Straw and Others: CA 30 Oct 2014

Judiciary 1. In these proceedings the appellants seek a declaration of illegality and damages arising from what they contend was the participation of the respondents in their unlawful abduction, kidnapping and removal to Libya in March 2004. The claim includes allegations that they were unlawfully detained and/or mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft. It is alleged that their detention and mistreatment was carried out by agents of China, Malaysia, Thailand, Libya and the United States of America. The claim pleads the following causes of action: false imprisonment, trespass to the person, conspiracy to injure, conspiracy to use unlawful means, negligence and misfeasance in public office.
2. We must emphasise that the hearings below and on this appeal have been conducted on the basis of the pleadings lodged by the parties. As matters stand these are no more than allegations.
3. On behalf of the respondents it is submitted that the proceedings are barred by state immunity and the act of state doctrine.
4. We agree with the judge that state immunity does not bar these proceedings.
5. However, we also consider that the claim is not barred by the act of state doctrine because it falls within a limitation on grounds of public policy in cases of violations of international law and fundamental human rights. In coming to this conclusion we are influenced, in particular, by the following considerations:
(1) The allegations in this case – although they are only allegations – are of particularly grave violations of international law and human rights in the form of torture and unlawful rendition.
(2) The respondents in these proceedings are either current or former officers or officials of state in the United Kingdom or government departments or agencies. Their conduct, considered in isolation, would not normally be exempt from investigation by the courts. On the contrary there is a compelling public interest in the investigation by the English courts of these allegations.
(3) This is not a case in which there is a lack of judicial or manageable standards. On the contrary, the applicable principles of international law and domestic law are clearly established.
(4) Unless the English courts were able to exercise jurisdiction in this case, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy.

Judges:

Lord Dyson MR, Lloyd Jones, Sharp LJJ

Citations:

[2014] EWCA Civ 1394, [2014] WLR(D) 459, [2015] 2 WLR 1105, [2016] 1 All ER 121

Links:

Bailii, Judiciary Summary, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Belhaj and Another v Straw and Others QBD 20-Dec-2013
The Claimants sought a declaration of illegality and claim damages arising from what they contend was the participation of the seven Defendants in their unlawful abduction, kidnapping and illicit removal across state borders to Libya in March 2004. . .

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, News, International

Updated: 12 April 2022; Ref: scu.538185

Rapisarda v Colladon (Irregular Divorces): FC 30 Sep 2014

The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Held: It had been asserted that the English court had jurisdiction to entertain the petition in accordance with the Council Regulation on the basis that the petitioner was habitually resident and had been resident in England and Wales. In all but one case there was in fact no reason to think there had been any UK residence. The English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition. It was apparent that an Italian had been offering a service providing UK divorces to Italian nationals.
Petitions not having reached the stage of decree had now been dismissed. The decrees must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. It made no difference if one or other or both of the parties have re-married or even had a child.
Sir James summarised the law: ‘i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.’

Judges:

Sir James Munby P FD

Citations:

[2014] EWFC 35, [2015] 1 FLR 597

Links:

Bailii

Statutes:

Domicile and Matrimonial Proceedings Act 1973 5(2), Council Regulation (EC) No 2201/2003, Matrimonial and Family Proceedings Act 1984, Family Procedure Rules 2010 7.5(1), Matrimonial Causes Act 1973 8

Jurisdiction:

England and Wales

Citing:

Cited – Ali Ebrahim v Ali Ebrahim (Queen’s Proctor intervening) 1983
. .
Cited – Sheldon v Sheldon (The Queen’s Proctor Intervening) 28-Jan-1865
Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of . .
Endorsed – Crowden v Crowden (The King’s Proctor showing cause) 1906
The normal practice of the Queen’s Proctor is not to adduce evidence in support of the plea on intervening in a divorce petition, and there is no need for him to do so where there is no answer to the plea. . .
Endorsed – Clutterbuck v Clutterbuck and Reynolds (Queen’s Proctor showing cause) 1961
The court considered the proper practice where the Proctor intervened in a divorce petition, but no answer was received from the parties. . .
Cited – Wiseman v Wiseman 1953
A decree absolute of divorce which would otherwise be void, will still be void even though one of the parties has subsequently remarried and had a child. . .
Cited – Bater v Bater CA 1906
The judgment of a divorce court dissolving a marriage is a judgment in rem, conclusively established the new status of the parties to the suit. A decree obtained in a foreign country by false evidence or by collusion in regard to the matrimonial . .
Cited – Lazarus Estates Ltd v Beasley CA 1956
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
Cited – Callaghan v Hanson-Fox (Andrew) FD 1992
H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably . .
Cited – Moynihan v Moynihan (No 2) FD 1997
The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the . .
Cited – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Marinos v Marinos FD 3-Sep-2007
The court was asked as to points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised). The greek father and english mother and their children had lived in Greece and England. W began . .
Cited – Kearly v Kearly FD 2009
. .
Cited – Leake v Goldsmith FD 8-May-2009
. .
Cited – V v V FD 20-May-2011
The court was asked as to its jurisdiction to hear a divorce petition under the Regulation Brussels II Revised. . .
Cited – Tan v Choy CA 19-Mar-2014
This appeal concerns the fifth indent of Article 3(1)(a) of the Regulation, which provides that ‘[i]n matters relating to divorce . . jurisdiction shall lie with the courts of the Member State (a) in whose territory . . the applicant is habitually . .

Cited by:

Cited – Grasso v Naik (Twenty-One Irregular Divorces) FD 8-Nov-2017
Deceit in address avoided divorce petitions
The Queen’s Proctor applied to have set aside as fraudulent 21 petitions for divorce. It was said that false addresses had been used in order to give the court the appearance that it had jurisdiction.
Held: The decrees obtained by fraud were . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction, News

Updated: 23 March 2022; Ref: scu.537216

Tyrrell v HM Senior Coroner County Durham and Darlington and Another: Admn 26 Jul 2016

The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which was clearly from natural causes. The cause of death was established and then confirmed on post-mortem examination. There was no indication of state involvement in his death of the sort that would trigger the procedural obligation under article 2 ECHR. The coroner was right to conclude that the procedural obligation was not engaged.
The positive obligations under article 2 encompass a duty to account for the cause of any death which occurs in custody. The procedural obligation arises only in circumstances where the responsibility of the state is engaged in the sense that there is reason to believe that the substantive positive obligations have been breached by the state. In the case of deaths in custody the procedural obligation will be triggered in the case of all suspicious deaths, including apparent suicides.

Burnett LJ, Lang J
[2016] EWHC 1892 (Admin), CO/3068/2015
Bailii, Judiiary
European Convention on Human Rights 2, Coroners and Justice Act 2009 1(2)
England and Wales
Citing:
Cited – Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson CA 27-Apr-1994
The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Slimani v France ECHR 27-Jul-2004
A Tunisian was committed to a psychiatric hospital on several occasions. He died while detained in a detention centre awaiting deportation. The applicant complained that there had been a violation of article 2 on two grounds: the detention centre . .
Cited – Goodson v HM Coroner for Bedfordshire and Luton Admn 17-Dec-2004
A patient had died in hospital following an operation. The NHS Trust submitted that ‘There is a real distinction between cases of medical negligence, which were specifically addressed as a discrete area in Calvelli, and cases of intentional killing . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Tarariyeva v Russia ECHR 14-Dec-2006
A complaint was made that the authorities had failed in their duty to protect a prisoner’s life. The authorities had him in custody for two years and knew of his health problems. He was not properly treated in the penal colony. When he had acute . .
Cited – Kats and Others v Ukraine ECHR 18-Dec-2008
The applicants were the parents and son of a prisoner who died in custody of an HIV related illness. They complained of her treatment in custody.
Held: If someone dies in custody an explanation of the cause of death must be provided, including . .
Cited – Daniel and Another v St George’s Healthcare NHS Trust and Another QBD 19-Jan-2016
The claimants as PR’s of a deceased prisoner claimed under the 1998 Act as to his treatment whilst in prison.
Held: The Claimants failed to establish violations of Articles 2 or 3 and their claim against both Defendants was dismissed. . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Prisons, Human Rights, Coroners, News

Updated: 20 January 2022; Ref: scu.567656

Erlam and Others v Rahman and Another: QBD 23 Apr 2015

The petitioners had alleged that the respondent, in his or his agent’s conduct of his campaign to be elected Mayor for Tower Hamlets in London in May 2014, had engaged in corrupt and illegal practices.
Held: The election was set aside for corrupt practice. The general burden of proof both in respect of the charges of corrupt or illegal practices and in respect of the allegation of general corruption must necessarily rest on the Petitioner. Although there are instances when the burden may shift to the Respondent (such as under s 158(3). . ), they do not affect the general rule itself.
Electoral law took the position that those who participated in the candidate’s campaign would be treated as agents for the candidate. By contrast, members of the wider public who merely manifested support for the candidate would not be ‘agents’ for electoral purposes.

Richard Mawrey QC Commissioner
[2015] EWHC 1215 (QB)
Bailii
Representation of the People Act 1983, Election Petition Rules 1960
England and Wales
Citing:
Cited – Watkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .
Cited – The Wakefield Case XVII 1874
The court considered who was an agent in election law: ‘By election law the doctrine of agency is carried further than in other cases. By the ordinary law of agency a person is not responsible for the acts of those whom he has not authorised, or . .
Cited – Leech v Governor of Parkhurst Prison HL 1988
The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; . .
Cited – Regina v Rowe, ex parte Mainwaring and Others CA 27-May-1992
Shortly before polling day in a local government election Liberal Democrat supporters printed and distributed in key wards a leaflet that made assertions about Labour policy. It was distributed in such a way as not to alert voters as to its true . .
Cited – Woolas, Regina (on The Application of) v The Speaker of The House of Commons Admn 3-Dec-2010
The claimant sought to challenge the decision of an Election court setting aside his election as a Member of Parliament. The court was asked to decide whether it had jurisdiction to review a determination by the Election Court of a point of law, and . .
Cited – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Cited – Willford, Regina (on The Application of) v Financial Services Authority (FSA) CA 13-Jun-2013
Where a separate specialist statutory regime has been established by Parliament, there would need to be powerful reasons or exceptional circumstances to bypass that regime and permit an application for judicial review.
The Court considered and . .

Lists of cited by and citing cases may be incomplete.

Elections, News

Updated: 10 January 2022; Ref: scu.546270

Gohil v Gohil: SC 14 Oct 2015

The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s application to set aside a financial order in divorce proceedings on the ground of a fraudulent non-disclosure of resources on the part of the other spouse?’
Held: Even if he had referred only to the evidence admissible before him, Moylan J would still properly have found the husband to have been guilty of material non-disclosure in 2004; that his order should therefore be reinstated; and that the wife’s claim for further capital provision should therefore proceed before him. The High Court must have jurisdiction to set aside a previous financial relief order, because the higher courts were not appropriate places to undertake the factual investigations required to found such an order.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hodge
[2015] UKSC 61, [2015] 2 FLR 1289, [2016] 1 All ER 685, [2015] 3 FCR 497, [2016] AC 849, [2015] 3 WLR 1085, [2015] WLR(D) 407, [2015] Fam Law 1459, UKSC 2014/0200
Bailii, Bailii Summary, WLRD, SC, SC Summary
Matrimonial and Family Proceedings Act 1984 31F(6)
England and Wales
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
At FD – Gohil v Gohil FD 25-Sep-2012
The parties had divorced and financial relief settled. W now applied to have the order set aside on the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband. W had attended his later trial and obtained much . .
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
See Also – Crown Prosecution Service and Another v Gohil CA 26-Nov-2012
The CPS had obtained evidence through letters of request. Mr and Mrs Gohil had previously divorced and reached a financial settlement. The evidence apparently disclosed further substantial assets which W said had not been disclosed in the settlement . .
Appeal from – Gohil v Gohil (No 2) CA 13-Mar-2014
The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial . .
Cited – Robinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .
Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Cited – Allied Fort Insurance Services Ltd and Others v Ahmed and Another CA 30-Jul-2015
The claim was for damages for breach of agency, breach of trust and/or fraudulent misrepresentation; accounts and inquiries into the dealings of all the defendants knowingly in receipt of money had and received by the defendants to Creation’s use in . .

Cited by:
See Also – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .

Lists of cited by and citing cases may be incomplete.

Family, News

Updated: 04 January 2022; Ref: scu.553307

Federacion De Servicios Privados Del Sindicato Comisiones Obreras v Tyco Integrated Security Sl: ECJ 10 Sep 2015

ECJ Judgment – Reference for a preliminary ruling – Social policy – Directive 2003/88/EC – Protection of the safety and health of workers – Organisation of working time – Point (1) of Article 2 – Concept of ‘working time’ – Workers who are not assigned a fixed or habitual place of work – Time spent travelling between the workers’ homes and the premises of the first and last customers

M Ilesic P
[2015] EUECJ C-266/14, ECLI:EU:C:2015:578
Bailii
Directive 2003/88/EC
Citing:
Opinion – Federacion De Servicios Privados Del Sindicato Comisiones Obreras v Tyco Integrated Security Sl ECJ 11-Jun-2015
ECJ Opinion – Protection of the safety and health of workers – Directive 2003/88/EC – Organisation of working time – Concept of ‘working time’ – Peripatetic workers – No fixed or habitual place of work – . .

Lists of cited by and citing cases may be incomplete.

European, Employment, News

Updated: 04 January 2022; Ref: scu.552331

Gadd, Regina v: QBD 10 Oct 2014

The prosecutor sought leave to bring a voluntary bill of indictment, to pursue historic sex abuse allegations against the defendant. The defendant objected to counts founded on facts which were the substance of a charge of indecent assault considered at an old style committal hearing when a Stipendiary Magistrate had ordered a stay of the charge on the ground of abuse of process because of delay.
Held: The objection failed. Globe J said: ‘ for the reasons advanced by the prosecution and notwithstanding the defence submissions, the facts do not justify a stay. I fully accept the finding of the Divisional Court that the decision that was made was one the Stipendiary was entitled to make. However, even treating it with the greatest of respect and caution that must be exercised, there is no actual prejudice that the defendant has identified and I attach little weight to the fact that the allegation relates to one incident rather than a course of conduct. It is a serious allegation and JA is and was capable of giving evidence about it.’

Globe J
[2014] EWHC 3307 (QB)
Bailii
Administration of Justice (Miscellaneous Provisions) Act 1933 2(s)(b)
England and Wales
Citing:
Cited – Attorney General’s Reference (No 1 of 1990) CACD 1990
A police officer attended an incident where two people were arrested. Complaints about his conduct were made of which he was given notice. A formal investigation was instituted and adjourned pending the outcome of criminal proceedings against those . .
Cited – Darmalingum v The State PC 10-Jul-2000
(Mauritius) The constitutional right of a defendant to have his case tried within a reasonable time applied not just to the initial trial but also to any appeal arising from that trial. Where there had been inordinate and inexcusable delay between . .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Davenport and Others, Regina v QBD 8-Dec-2005
An application was made for consent to file a voluntary bill against the defendants.
Held: Mr Justice Pitchers said: ‘No application for a voluntary bill is, in form, an appeal from a decision from another court. However, at least when a High . .
Cited – S, Regina v CACD 6-Mar-2006
The court restated the principles applying a stay for abuse of process occasioned by delay. Rose VP LJ said: , the correct approach for a judge to whom an application for a stay for abuse of process on the ground of delay is made, is to bear in mind . .
Cited – Crown Prosecuting Service v F CACD 21-Jul-2011
The Crown appealed against dismissal of historic sexual abuse charges for delay by the complainant.
Held: The justification for delay is relevant only to the extent that it bears upon the question whether a fair trial is no longer possible by . .
Cited – Regina v Wright 2014
The court decided to refuse to lift a stay granted by a circuit judge, but to permit the admission of evidence founding counts subject to this delay as evidence of very similar conduct, adduced to rebut any suggestion of concoction or mistake. . .
Cited – Regina v Telford Justices, ex parte Badhan CACD 1991
The defendant was accused of a sexual offence alleged to have been committed some 15 years earlier. He asked the magistrates to dismiss the charge as an abuse of process, and now appealed their refusal.
Held: The onus was on the accused to . .
Cited – Brooks v Director of Public Prosecutions and Another PC 2-Mar-1994
(Jamaica) The DPP successfully applied for a voluntary bill after the resident magistrate had discharged the defendant on the ground that having heard the evidence, there was no case to answer. The challenge to the DPP’s decision to seek a voluntary . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 11 November 2021; Ref: scu.537748

Hutchinson v The United Kingdom: ECHR 3 Feb 2015

hutchinson_UKECHR201502

Article 3
Degrading punishment
Inhuman punishment
Continued detention under whole life order following clarification of Secretary of State’s powers to order release: no violation
Facts – Following his conviction in September 1984 of aggravated burglary, rape and three counts of murder, the applicant was sentenced to life imprisonment with a recommended minimum tariff of 18 years. In December 1994 the Secretary of State informed him that he had decided to impose a whole life term. Following the entry into force of the Criminal Justice Act 2003, the applicant applied for a review of his minimum term of imprisonment. In May 2008 the High Court found that there was no reason for deviating from this decision given the seriousness of the offences. The applicant’s appeal was dismissed by the Court of Appeal in October 2008.
In his application to the European Court, the applicant alleged that the whole life order with no prospects of release had violated Article 3 of the Convention.
Law – Article 3: The case centred on whether the Secretary of State’s discretion to release a whole life prisoner under section 30 of the Criminal Justice Act 2003 was sufficient to make the whole life sentence imposed on the applicant legally and effectively reducible. In Vinter and Others v. the United Kingdom, the Grand Chamber found that was a lack of clarity in the law as chapter 12 of the Indeterminate Sentence Manual (which provided that release would be ordered only if the prisoner were terminally ill or physically incapacitated) gave rise to uncertainty as to whether the section 30 power would be exercised in a manner compliant with Article 3. In addition, the fact that the Manual had not been amended meant that prisoners subject to whole life orders derived from it only a partial picture of the exceptional conditions capable of leading to the exercise of the Secretary of State’s power under section 30.
The Court of Appeal had, however, since delivered a judgment expressly responding to the concerns detailed in Vinter and Others. In R v. Newell; R v McLoughlin* the Court of Appeal held that it was of no consequence that the Manual had not been revised, since it was clearly established in domestic law that the Secretary of State was bound to exercise his power under section 30 in a manner compatible with Article 3. If an offender subject to a whole life order could establish that ‘exceptional circumstances’ had arisen subsequent to the imposition of the sentence, the Secretary of State had to consider whether such exceptional circumstances justified release on compassionate grounds. Regardless of the policy set out in the Manual, the Secretary of State had to consider all the relevant circumstances, in a manner compatible with Article 3. Any decision by the Secretary of State would have to be reasoned by reference to the circumstances of each case and would be subject to judicial review, which would serve to elucidate the meaning of the terms ‘exceptional circumstances’ and ‘compassionate grounds’, as was the usual process under the common law. In the judgment of the Court of Appeal, domestic law therefore did provide to an offender sentenced to a whole life order hope and the possibility of release in the event of exceptional circumstances which meant that the punishment was no longer justified.
Where, as here, the national court had specifically addressed doubts expressed by the Court regarding the clarity of domestic law and set out an unequivocal statement of the legal position, the Court had to accept the national court’s interpretation of domestic law.
Conclusion: no violation (six votes to one).

57592/08 – Legal Summary, [2015] ECHR 239
Bailii
European Convention on Human Rights

Human Rights, Criminal Sentencing, News

Updated: 11 November 2021; Ref: scu.543764

Firstgroup Plc v Paulley: CA 8 Dec 2014

The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver should have had instructions to insist on this, and wone his case at the county court. The bus company appealed.
Held: The appeal succeeded. The case: ‘is not about whether non-wheelchair users should move out of the wheelchair space on a bus in order to accommodate a passenger in a wheelchair. Of course they should if that is possible. Nor is it about whether mothers standing in the wheelchair space with a child in a folding buggy should fold their buggies in order to make way for a wheelchair user. Of course they should if that is possible. Non-wheelchair users, unlike wheelchair users, will normally have a choice about which part of the bus to sit or stand in. Common decency and respect for wheelchair users should mean that other passengers make way for them. What is at issue is whether the bus company must have a policy to compel all other passengers to vacate the wheelchair space irrespective of the reason why they are in it, on pain of being made to leave the bus if they do not, leaving no discretion to the driver. ‘
He continued: ‘the applicable Regulations do not specify the mode of use of the spaces required to be made available. They simply set out what space must be available, and ‘whereas the regulations give explicit priority to disabled persons who wish to use the priority seats, they do not give similar priority to wheelchair users who wish to use the wheelchair space.’
As to the judge’s statement that inconvenience to mothers with buggies is ‘a consequence of the protection that Parliament has chosen to give to disabled wheelchair users and not to non-disabled mothers with buggies’: ‘This was, in my judgment, a misapprehension. What Parliament has given by way of protection (over and above the Conduct Regulations) is a right to reasonable adjustments. What is a reasonable adjustment depends, among other things, on the impact of the adjustment on others. They do not need to have any particular protection in order for the impact on them to be given weight. The judge seems to me to have thought that the needs of wheelchair users trumped all other considerations. If that is what he meant, I respectfully disagree. ‘

Arden, Lewison, Underhill LJJ
[2014] EWCA Civ 1573, [2014] WLR(D) 525
Bailii, WLRD
Public Service Vehicle Accessibility Regulations 2000, Public Passenger Vehicles Act 1981, Equality Act 2010 6(3), Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990
England and Wales
Citing:
Cited – Black and Others v Arriva North East Ltd 1-May-2013
Middlesborough County Court. The claimants complained of a policy by the defendant bus company as to the use of wheelchair spaces on buses in that disabled users were not given absolute priority above buggy users.
Held: The company were not . .
Cited – Roads v Central Trains Ltd CA 5-Nov-2004
The court considered the meaning of the ‘duty to provide a reasonable alternative method’.
Held: The policy of the 1995 Act was to provide access to a service as close as it was reasonable possible to get to the standard offered to the public . .
Cited – The Royal Bank of Scotland v Ashton EAT 16-Dec-2010
EAT DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
An Employment Tribunal failed to focus on the wording of the Disability Discrimination Act 1995 . .
Cited – Lancaster v TBWA Manchester EAT 17-Feb-2011
EAT UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Reasonable adjustments
AGE DISCRIMINATION
The Appellant, a senior art director at a marketing and advertising agency, was aged 50 . .
Cited – Nottingham City Transport Ltd v Harvey EAT 5-Oct-2012
EAT Disability Discrimination: Reasonable Adjustments – Employee unfairly dismissed, because the employer did not conduct a reasonable investigation nor consider mitigating circumstances when disciplining a . .
Cited – Black and Others v Arriva North East Ltd 1-May-2013
Middlesborough County Court. The claimants complained of a policy by the defendant bus company as to the use of wheelchair spaces on buses in that disabled users were not given absolute priority above buggy users.
Held: The company were not . .
Cited – Finnigan v Northumbria Police CA 8-Oct-2013
Officers had searched the claimant’s house on three occasions. Though it was known that he was profoundly deaf, no signer had been brought along to assist. The judge had held that on two occasions communication had been effective, and on the third, . .

Cited by:
Appeal from – Firstgroup Plc v Paulley SC 18-Jan-2017
The claimant wheelchair user alleged discrimination by the bus company. The space reserved for wheelchair users on a bus had been wrongly occupied by a passenger who refused to vacate the space. The claimant said that the bus driver should have . .

Lists of cited by and citing cases may be incomplete.

Transport, Discrimination, News

Updated: 11 November 2021; Ref: scu.539764

Sugarman and Others v CJS Investments Llp and Others: CA 19 Sep 2014

The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, or had a number of votes equal to the number of apartments. The articles disapplied Regulation 54 of Table A which would have given votes at a number equal to the shares/apartments held.
Held: The appeal succeeded. Floyd LJ said: ‘the language of the voting provision in article 13(a) is clear and unambiguous and that I am bound to apply it. The language used is simply not flexible enough to admit of the respondents’ construction of it.’ And ‘my first task is to enquire whether the language used in the main voting provision in article 13(a) is capable of bearing the meaning contended for by the respondents, or whether, as the appellants submit, it is clear and unambiguous. It is only if I consider that the language is capable of bearing both meanings, that I am entitled to prefer that which most accords with common sense. I am not entitled, under the guise of construing the contract, to rewrite it in order to arrive at a meaning which most accords with our view of business common sense.’
Briggs LJ discussed whether the provision was absurd: ‘There can unfortunately be a fine dividing line between that which appears commercially unattractive and even unreasonable and that which appears nonsensical or absurd. . . The real question is whether the parties can really be taken to have meant by those words to prescribe one member one vote on a poll. It is truly bizarre to think that the promoters of this management company really meant to confer power on (say) 2 flat owners to control the management policy for the whole block where all the other 102 flats were owned by a single investor owner which would be powerless to use its single vote to intervene. Furthermore the care with which these Articles prescribe that each flat owner (whether an individual or co-owning group) has one share and no more (in circumstances where share ownership confers voting rights and nothing else) suggests at least at first sight that Art 13 was not meant to distribute votes, at least on a poll, regardless of the number of shares held. These considerations seemed to me, at least initially, to provide real force in favour of the judge’s view that the literal meaning of the relevant words in Art 13(a) produced a commercial absurdity which could not be its intended or real meaning.
There are however two factors which have persuaded me, on a narrow balance, that the judge was wrong in his finding of commercial absurdity. The first is that there is, as Mr Chaisty pointed out, a good reason for the prescription of one share per flat owner, quite apart from an implication that the number of a member’s shares should govern the number of his votes. It creates a structure where a member who owns multiple flats can confer membership and therefore voting participation on the buyer of one of his flats, while remaining a voting member in respect of the remainder.
The second, perhaps more fundamental, point is that it is dangerous to test commercial absurdity by reference to extreme examples, such as the 102 flats under single ownership, capable of being out-voted by the separate owners of the remaining 2 flats. The court looks at the words used in the context of what the promoters might have thought was a typical or not unlikely ownership pattern, because that is the context in which the assertion of a commercially absurd meaning must be tested. It strikes me as wholly unlikely that the promoters would have given any thought at all to the possibility of one person owning all but 2 of the flats or, for that matter (although this is what later occurred), that as many as 66 flats would come to be owned by a single investor.’

Briggs, Floyd, Macur LJJ
[2014] EWCA Civ 1239
Bailii
Companies Act 2006 321(1)
England and Wales
Citing:
Cited – In Re Horbury Bridge Coal Iron and Waggon Co CA 1879
Lord Jessell MR described the position at common law as regards the rights of members with different numbers of shares in the company, saying: ‘We first of all consider what may be termed the common law of the country as to voting at meetings. It is . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Kookmin Bank v Rainy Sky Sa and Others CA 27-May-2010
The defendant bank appealed against summary judgment given on a claim on its obligations under an advance payment bond given to support ship-building contracts.
Sir Simon Tuckey (dissenting) said: ‘There is no dispute about the principles of . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .

Lists of cited by and citing cases may be incomplete.

Company, Landlord and Tenant, News

Updated: 10 November 2021; Ref: scu.536776

Tower Hamlets v M and Others: FD 27 Mar 2015

The authority sought orders to prevent the respondent children travelling to countries controlled by the ISIS groups. The parents being unlikely to be effective to restrain them, the court had made them wards of court.
Held: ‘the status of a Ward of the High Court of England and Wales has achieved international recognition. For this reason, and because it vests parental responsibility solely in the High Court, it is particularly apposite in circumstances such as those contemplated here. All the major decisions relating to such children for the period of the operation of the wardship require the approval of the High Court.’ Orders had been made, the court emphasising the detail of the steps to be taken by local authorities in such cases. The first application here had fallen short of the standards required, and ‘I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.’
Additionally the court had been re-assured that a lost passport had expired. In fact that was not the case. Moreover the police though discovering this had not informed social services.
Hayden J concluded: ‘the conventional safeguarding principles will still afford the best protection. Once again, this court finds it necessary to reiterate that only open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter-agency cooperation is going to provide the kind of protection that I am satisfied that the children subject to these applications truly require.’
and . . ‘in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations.’

Hayden J
[2015 EWHC 869 (Fam), [2016] 1 All ER 182, [2015] 3 FCR 399, [2015] WLR(D) 155, [2015] Fam Law 650, [2015] 2 FLR 1431, [2015] PTSR D30
Bailii, WLRD
Children Act 1989 31(ii)
England and Wales
Citing:
Cited – In Re A-K (Minors)(Foreign Passport: Jurisdiction) CA 18-Feb-1997
A family court has power to require the surrender of a foreign passport to solicitors. . .
Cited – Re W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – In re S (A Child) (Family Division: Without Notice Orders) FD 2001
Munby J considered the the duty of full and frank disclosure which exists on those who seek to use a without notice procedure within Children proceedings. Generally, when granting ex parte injunctive relief in the Family Division, the court will . .

Cited by:
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice, News

Updated: 10 November 2021; Ref: scu.545017

Hamas v Council: ECFI 17 Dec 2014

ECJ Judgment – Common Foreign and Security Policy – Restrictive measures against certain persons and entities in the context of the fight against terrorism – Freezing of funds – Evidence base of freezing funds – Reference to acts of terrorism – need for a competent authority decision within the meaning of Common Position 2001/931 – Obligation to state reasons – Modulation in time the effects of a cancellation

NJ Forwood, President, F. Dehousse (Rapporteur) and J. Schwarcz, Judges
T-400/10, [2014] EUECJ T-400/10, ECLI: EU: T: 2014: 1095
Bailii
Common Position 2001/931
European

Banking

Updated: 10 November 2021; Ref: scu.540232

National Aids Trust v National Health Service Commissioning Board (NHS England): Admn 2 Aug 2016

NHS to make drug available

The claimant charity said that drugs (PrEP) prophylactic for AIDS / HIV should be made available by the defendant and through the NHS. The respndent said that the responsibility for preventative medicine for sexual health lay with local authorities.
Held: The claim succeeded. NHS England had misdirected itself in law when it concluded that it had no power to commission PrEP: ‘when the NHSA 2006 is considered both as a whole but also by reference to its specific provisions it has the following broad characteristics and purposes; First, it imposes broad duties and powers on NHS England to secure the provision of health services to the entirety of the population and nation wide; second, the duty includes all aspects of preventative medicine; third it exercises its powers and duties concurrently with other providers of services which includes the Secretary of State, CCGs and local authorities; fourth these services are to be provided comprehensively and in an integrated manner; fifth, the service is to be provided efficiently and so as to avoid inequalities of provision or outcome.’

Green J
[2016] EWHC 2005 (Admin), CO/2979/2016
Bailii, Judiciary
National Health Service Act 2006, National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, Local Authorities (Public Health Functions etc.) Regulations 2013
England and Wales
Citing:
Cited – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .
Cited – UBS Ag and Another v Revenue and Customs SC 9-Mar-2016
UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps . .
Cited – Harvey, Regina v SC 16-Dec-2015
Police had discovered quantities of stolen goods at the appellant’s business premises. He was convicted of receiving stolen goods, and confiscation order made. He now appealed from the inclusion in that order of sums of VAT which had already been . .
Cited – Solar Century Holdings Ltd and Others v Secretary of State for Energy and Climate Change Admn 7-Nov-2014
The court considered the admissibility of pre-legislative material as evidence to support the interpretation of a statute. . .
Mentioned – Solar Century Holdings Ltd and Others v Secretary of State for Energy and Climate Change CA 1-Mar-2016
This judicial review appeal concerns the legality of decisions by the respondent, the Secretary of State for Energy and Climate Change (‘the SoS’), to bring to a premature close, subject to certain periods of grace, a statutory scheme supporting the . .
Cited – Attorney-General v Mersey Railway Co HL 1906
The power to make by-laws encompasses not only a company’s principle activity, but also all incidental and ancillary activities. The incidental power cannot be used to expand the company’s activities, in this case by extending its business by . .
Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Cited – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .

Lists of cited by and citing cases may be incomplete.

Health, Local Government, News

Updated: 10 November 2021; Ref: scu.567876

Core Issues Trust Ltd, Regina (on The Application of) v Transport for London and Another: Admn 30 Jul 2014

The claimant sought to challenge a decision of the respondents to refuse to allow it to display a notice on buses said to be anti gay. The claimants promoted the view that, in accordance with the Scriptures, sexual relations should only take place between heterosexual married couples, not homosexuals, supporting those who are unhappy with their homosexuality to manage, reduce and where possible, eliminate homosexual practices and feelings. The advert was said to breach the respondent’s policies. The case had been rejected earlier, but additional information suggested, the applicant said, that a statury power had been exercised for an improper purpose.
Held: The caim was dismissed. ‘It is a general principle of administrative law that a public body must exercise a statutory power for the purpose for which the power was conferred by Parliament, and not for any unauthorised purpose. An unauthorised purpose may be laudable in its own right, yet still unlawful. The issue is not whether or not the public body has acted in the public interest, but whether it has acted in accordance with the purpose for which the statutory power was conferred.’ and
‘i) Mr Johnson was the Chair of the Board of TfL and, in his capacity as Mayor, he had statutory power to issue written instructions or directions to TfL. He did not issue either a written or verbal instruction or direction to TfL on this occasion.
ii) TfL made the decision not to run the advertisements. Prior to making that decision, Mr Everitt of TfL requested the views of the Mayor’s office and Mr Johnson communicated a strongly-expressed opinion that the advertisements were offensive and should not appear on London buses. Mr Everitt of TfL was strongly influenced by Mr Johnson’s opinion when he made the decision not to run the advertisements.
iii) Mr Johnson was not motivated by an improper purpose, namely, to advance his Mayoral election campaign.’

Lang DBE J
[2014] EWHC 2628 (Admin)
Bailii
Equality Act 2010
England and Wales

Administrative, News

Updated: 10 November 2021; Ref: scu.535530

The Ritz Hotel Casino Ltd v Al Daher: QBD 15 Aug 2014

The claimant sought to recover andpound;1m on unpaid cheques. The cheques represented half of the sum gambled away by the defendant in one evening. She now alleged that the claimant had not complied with its duties under the 2005 Act to act responsibly in the giving of credit. The claimant denied that its cheque cashing facility afforded to high value players amounted to the giving of credit.
Held: The Act expressly permits the giving of a cheque by the player not post-dated and for full value, though if it were found on the facts that the player signs and the casino accepts a cheque as a charade or pretence, (for example if both know that the player could not ever pay upon presentation of the cheque), the proper finding of fact, as much as in law, would be that credit was being extended or accommodation made. The 2005 Act was a liberalising Act.
The court approved counsel’s analysis of the nature of a gambling chip: ‘chips are a convenient mechanism for facilitating gambling with money. If money is deposited, and the same would apply to a cheque, it is a gratuitous deposit with liberty to the casino to draw upon when and if a debt arises. In turn, the debt does not arise until the end of the session when it is ascertained who is the winner and who is the loser as between casino and player, whereupon a debt arises from the loser to the winner. ‘ There had been no unlawful giving of credit.
The court considered what would be the effect of a finding that the arrangement had been the giving of credit.

Seys Llewellyn QC HHJ
[2014] EWHC 2847 (QB)
Bailii
Gaming Act 2005 16(2) 81
England and Wales
Citing:
Cited – Regina v Knightsbridge London Crown Court ex parte Marcrest Properties Ltd CA 1983
The court was asked not to renew a gaming licence on the basis that the company was not a fit and proper person. They had a practice of repeatedly accepting cheques from persons whose previous cheques had been dishonoured, and in circumstances in . .
Cited – Aspinall’s Club Ltd v Al-Zayat ComC 3-Sep-2008
The claimant sought payment on a cheque in respect of gamblig debts incurred by the defendant. Teare J said: ‘The ordinary and natural meaning of credit in the context of section 16 of the Act is ‘time to pay’, in the sense of deferring or . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Crockfords Club Ltd v Mehta CA 8-Jan-1992
The Defendant had gambled at the plaintiff’s casino, using cheques drawn on a company to obtain chips, all of which he lost. The cheques not having been honoured, Crockfords sued the Defendant for repayment of the loan made to him on the issue of . .
Cited – Parkingeye Ltd v Somerfield Stores Ltd CA 17-Oct-2012
The claimant company operated parking management for the defendant, charging customers for overparking. The defendant came to believe that the claimant’s behaviour was over-aggressive, and the use of falsehoods, and terminated the contract. The . .
Approved – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .

Lists of cited by and citing cases may be incomplete.

Licensing, Contract, News

Updated: 09 November 2021; Ref: scu.536031

USDAW And Wilson v WW Realisation 1 Ltd, in liquidation: ECJ 30 Apr 2015

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Collective redundancies – Directive 98/59/EC – Article 1(1)(a) – Meaning of ‘establishment’ – Method of calculating the number of workers made redundant

T von Danwitz, P
C-80/14, [2015] EUECJ C-80/14, ECLI:EU:C:2015:291
Bailii
Directive 98/59/EC 1(1)(a)
European

Employment, Insolvency

Updated: 09 November 2021; Ref: scu.546229

Bear Scotland Limited v Fulton, and similar: EAT 4 Nov 2014

EAT WORKING TIME REGULATIONS: HOLIDAY PAY – DAMAGES FOR BREACH OF CONTRACT – UNLAWFUL DEDUCTION FROM WAGES
The EAT held that Article 7 of the Working Time Directive is to be interpreted such that payments for overtime which the employees in two appeals before it were required to work, though which their employer was not obliged to offer as a minimum, is part of normal remuneration and to be included as such in the calculation of pay for holiday leave taken under regulation 13 of the Working Time Regulations 1998.
Those Regulations could be interpreted so as to conform to that interpretation.
An appeal by Bear Scotland was thus rejected, as were (on these issues) appeals by Hertel and Amec.
A further appeal by Hertel and Amec against the ET’s findings that the Claimants could claim the consequent arrears of pay as being unlawful deductions from their pay under the ERA 1996 (on the basis that on each occasion holidays were not paid in accordance with the true interpretation of Article 7 and the WTR the deduction was one of a series of deductions) was allowed insofar as in any case a period of more than three months elapsed between such deductions. Their appeal against a conclusion that contractual payments for PILON should include payment for 44 hours per week (including 6 hours overtime) also succeeded, upon a construction of the relevant contractual provisions.
A cross-appeal by the Claimants in Hertel and Amec succeeded against the ET’s decision that taxable remuneration for time spent travelling to work did not fall within ‘normal remuneration’ for the purpose of calculating holiday pay.

Langstaff P J
UKEATS/0047/13/BI, UKEAT/0160/14/SM, UKEAT/0161/14/SM, [2014] UKEAT 0047 – 13 – 0411, [2015] ICR 221, [2015] 1 CMLR 40, [2015] IRLR 15
Judiciary, Bailii
Working Time Regulations 1998, Working Time Directive (2003/88/EC) 7, Employment Rights Act 1996
England and Wales
Citing:
Cited – Williams And Others v British Airways Plc ECJ 15-Sep-2011
ECJ Working conditions – Directive 2003/88/EC – Organisation of working time – Right to annual leave – Airline pilots
ECJ Article 7 of Directive 2003/88/EC and clause 3 . .
Cited – British Airways Plc v Williams and Others SC 17-Oct-2012
The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their . .

Cited by:
Cited – British Gas Trading Ltd v Lock and Another (Working Time Regulations : Holiday Pay) EAT 22-Feb-2016
EAT WORKING TIME REGULATIONS – Holiday pay
Mr Lock was at the material time employed by British Gas as a salesman. His remuneration package included a basic salary plus commission which was based on the . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Leading Case

Updated: 09 November 2021; Ref: scu.538258

The Law Society and Others, Regina (on The Application of) v The Lord Chancellor: CA 25 Mar 2015

Appeal against rejection of request for judicial review of respondent’s decisions introducing contracts for solicitors to provide Duty Provider Work (DPW) across England and Wales, to advise criminal suspects at local police stations and, in certain circumstances, at magistrates’ courts.
Held: The appeal failed. In view of the rational and lawful evaluation of the consultation responses made by the Lord Chancellor, it was not incumbent on him to investigate the current underlying facts in any greater detail than he did.

Lord Dyson MR, Elias, Sales LJJ
[2015] EWCA Civ 230
Bailii
England and Wales

Legal Professions, News

Updated: 09 November 2021; Ref: scu.544737

Gough v The United Kingdom: ECHR 28 Oct 2014

gough_uk201410

The applicant alleged that his repeated arrest, prosecution, conviction and imprisonment for being naked in public and his treatment in detention violated his rights under Articles 3, 5-1, 7-1, 8, 9 and 10 of the Convention.
Held: The application was dismissed. Going naked in public was the applicant’s chosen method of expressing himself, and as such came within the amibit of article 10. His repeated arrests and prosecutions were therefore an interference in his Article 10 rights.
However, the state had a wide margin of appreciation, and the measures met a pressing social need, and though cumulatively the measures became disproportionate, and having regard, in particular, to his own responsibility for his plight, the public authorities in Scotland had not unjustifiably interfered with his exercise of freedom of expression.
There appeared to be no support in any society for the applicant’s suggestion that the response had been an interference of any article 8 right.

Ineta Ziemele, P
49327/11 – Chamber Judgment, [2014] ECHR 1156
Bailii, Gazette
European Convention on Human Rights 3 5-1 7-1 8 9 10

Human Rights, Crime

Updated: 02 November 2021; Ref: scu.538215

Regina v Adebolajo and Another: CACD 3 Dec 2014

The defendants had been convicted of the brutal and public murder of Fusilier Lee Rigby in London, and sentenced to whole life term for Adebolajo and 45 years for Adebowale. They now sought leave to appeal against conviction and sentence.
Held: The appeals failed. The Court recounted the events of the murder. Adebolajo argued that he was fighting a war; that it had been the law for centuries that the Crown had to prove that a murder was committed under the Sovereign’s peace; that did not include killing in the course of a war. The Crown, it was submitted, had to prove that Adebolajo was under ‘The Queen’s Peace’ and not at war with the Queen.
The two defendants had been convicted of the very public and brutal murder of a soldier Lee Rigby in a London street. Adebolajo appealed against his conviction, saying that he had believed himself to be an enemy combatant and that therefore the killing was not within the Queen’s Peace.
Held: The appeal failed: ‘The law is now clear. An offender can generally be tried for murder wherever committed if he is a British subject, or, if not a British subject, the murder was committed within England and Wales. The reference to ‘the Queen’s peace’, as originally dealt with in the cases to which we have referred, went essentially to jurisdiction. Although the Queen’s Peace may play some part still in the elements that have to be proved for murder as regards the status of the victim (and it is not necessary to examine or define the ambit of that), it can only go to the status of the victim; it has nothing whatsoever to do with the status of the killer.’
As to Adebowale, ‘there was no evidence that the mental illness had any role at all in Adebowale’s culpability. Nonetheless, we think that the judge was right to take into account the mental illness from which he had suffered thereafter, his symptoms at the time, his lesser role, the part he played and his youth. We consider that the judge fairly took all of those matters into account. ‘ The sentence for this barbaric crime remained appropriate.

Lord Thomas of Cwmgiedd LCJ, Hallet VP CACD LJ, Edis J
[2014] EWCA Crim 2779, [2014] WLR(D) 519
Bailii, WLRD
England and Wales
Citing:
Cited – Rex -v William Sawyer 1815
(Old Bailey) The defendant was a British subject. He murdered another British subject, Harriet Gaskett, in Lisbon. He was found guilty of murder. The point was taken that, as the offence had been committed abroad, the indictment was not framed in a . .
Cited – Regina v Serva and nine others 26-Jul-1845
The court considered the meaning of the phrase ”against the peace of the King’
Held: The phrase applies to the offender: it relates to his capacity to commit the crime. . .
Cited – Regina v Page CMAC 1954
The defendant, a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction . .

Lists of cited by and citing cases may be incomplete.

Crime, Criminal Sentencing., News

Updated: 02 November 2021; Ref: scu.541555

In re C (A Child): CA 29 Jul 2016

Publication of care hearings

The court was asked whether a judgment in earlier care proceedings held in private should now be made public. The father had since been convicted of the murder of C. Reporting restrictions were imposed pending his trial, and immediately after the trial order had been continued to protect his right to a fair trial. He had said that he intended to appeal. The media organisations now appealed against the latter order.
Held: The redacted judgment should be published.
Lord Dyson MR said that in terms of jurors remembering publicity about a trial or the people involved in it, the ‘staying power of news reports is very limited’.

Lord Dyson MR, McFarlane, Burnett LJJ
[2016] EWCA Civ 798, B4/2016/2680, [2016] Fam Law 1223, [2017] 2 FLR 105, [2016] 1 WLR 5204, [2016] WLR(D) 448
Bailii, Judiciary, WLTD
England and Wales
Citing:
Judgment now published – London Borough of Sutton v Gray and Butler FD 30-Jun-2016
(Redacted) The Borough sought a care order.
Held: The father was respnsible for the death of the sister, and the surviving child was in need of the kind of care which would not lead to her following her mother’s path. . .

Cited by:
Cited – Sarker, Regina v CACD 13-Jun-2018
The defendant was to face trial under the 2006 Act. He applied for an order under section 4(2) of the 1981 Act postponing the reporting of the proceedings on the grounds that knowledge by the jury of the inquiry and police investigation would be . .

Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 01 November 2021; Ref: scu.567802

Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis: Admn 25 Sep 2014

The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured that the matter was closed, resigned and took up the new post with accommodation. The decision to accept his resignation was then successfully challenged, and the investigation was re-opened. He now said that a legitimate expectation had been created, and sought review of the decision to continue his suspension and reject his resignation.
Held: The request for review failed. A legitimate expectation had been created, and the claimant’s human rights were engaged. However there were counterbalancing public interests. The Assistant Commissioner had very carefully and properly considered the rights engaged both as to the personal rights of the claimant and as to the public rights in the system preventing an officer resigning whilst subject to investigation and possible disiplinary charges.

Lang DBE J
[2014] EWHC 3041 (Admin)
Bailii
Police (Conduct) Regulations 2004, European Convention on Human Rights 2 8 9
England and Wales
Citing:
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Coghlan and Others v Manchester Police and Another Admn 2-Dec-2004
The Secretary of State for the Home Department had issued guidance in Circular 55/2003 indicating that the power to suspend a police officer could be used to prevent a resignation and thus ensure the completion of disciplinary proceedings.
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
Cited – Bhatt Murphy (a firm), Regina (on the application of) v The Independent Assessor CA 9-Jul-2008
The appellants each challenged alterations to the scheme for compensation of the victims of miscarriages of justice.
Held: Laws LJ emphasised the special nature of the promise or practice which was necessary to give rise to a substantive . .
Cited – Paponette and Others v Attorney General of Trinidad and Tobago PC 13-Dec-2010
The appellants operated taxis in Port-of-Spain. The Minister proposed changes, but when challenged provided re-assurances. After the changes, the re-assurances were not satisfied. The claimants sought judicial review asserting that a legitimate . .
Cited – Rhodes, Regina (on The Application of) v Police and Crime Commissioner for Lincolnshire Admn 28-Mar-2013
The claimant sought to challenge a decision of the respondent to suspend him as Chief Constable.
Held: The terms of regulation 4(1) confer a broad discretion on the appropriate authority. However, that discretion is subject to the conditions . .
Cited – Powell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
Cited – Calvelli And Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
Cited – Anguelova v Bulgaria ECHR 13-Jun-2002
A youth had died in police custody a few hours after being arrested for attempted theft.
Held: The court considered the investigation required: ‘There must be a sufficient element of public scrutiny of the investigation or its results to . .
Cited – Mastromatteo v Italy ECHR 24-Oct-2002
The deceased had been a bystander killed by a group of criminals, some of whom were on leave of absence from prison and one of whom had absconded from prison. A complaint was made by the applicant that there had been a breach of the positive duty to . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – Sidabras And Dziautas v Lithuania ECHR 27-Jul-2004
Former KGB officers complained that they were banned, not only from public sector employment, but also from many private sector posts. This ‘affected [their] ability to develop relationships with the outside world to a very significant degree, and . .
Cited – Oneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
Cited – Nachova and Others v Bulgaria ECHR 6-Jul-2005
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel) ; Violation of Art. 2 with regard to deaths ; Violation of Art. 2 with regard to lack of effective investigation ; Not . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – LePage, Regina (on The Application of) v HM Assistant Deputy Coroner for Inner South London and Others Admn 30-May-2012
The claimant sought judicial review of a coroner’s decisions in the conduct of an inquest into the death of a young woman. She died in police custody. She was said to have taken drugs. . .
Cited – Kulah And Koyuncu v Turkey ECHR 23-Apr-2013
. .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights, News

Updated: 01 November 2021; Ref: scu.537026

Whitston (Asbestos Victims Support Groups Forum UK), Regina (on The Application of) v Secretary of State for Justice: Admn 2 Oct 2014

The claimants challenged the selection by the defendant of victims of meselothemia as a group were excluded from entitlement to the recovery of success fees and insurance premiums paid by successful claimants from unsuccessful defendants.
Held: The claim succeeded. The basis of the decision to exclude such claims was quite inadequate as a consultation: ‘The issue is whether the Lord Chancellor conducted a proper review of the likely effect of the LASPO reforms on mesothelioma claims. For the reasons given above I conclude that he did not. No reasonable Lord Chancellor faced with the duty imposed on him by Section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty. I do not find that a consultation exercise per se was an inappropriate means of fulfilling the duty. Rather, the nature of this consultation meant that it did not permit the Lord Chancellor to do so.’

William Davis J
[2014] EWHC 3044 (Admin)
Bailii
Legal Aid Sentencing and Punishment of Offenders Act 2012, Access to Justice Act 1999
England and Wales
Citing:
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – The Bard Campaign and Another v Secretary of State for Communities and Local Government Admn 25-Feb-2009
The claimant sought judicial review of the inclusion of their land in lands listed for future development of eco-towns. There had been a consultation which they said was inadequate. The consultation was a general invitation for readers to send in . .
Cited – Secretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
Cited – Regina v Brent London Borough Council ex parte Gunning 1985
The demands of fair consultation procedures will vary from case to case and will depend on the factors involved. The requirements are: ‘First, that consultation must be at a time when proposals are still at a formative stage. Second, that the . .
Cited – Bhatt Murphy (a firm), Regina (on the application of) v The Independent Assessor CA 9-Jul-2008
The appellants each challenged alterations to the scheme for compensation of the victims of miscarriages of justice.
Held: Laws LJ emphasised the special nature of the promise or practice which was necessary to give rise to a substantive . .

Lists of cited by and citing cases may be incomplete.

Costs, Personal Injury

Updated: 01 November 2021; Ref: scu.537244

ABC and Others, Regina v: CACD 26 Mar 2015

Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of conspiracy with the public officials and aiding and abetting them to commit the offence.
Held: The direction as to the seriousness of breach of duty by the public officer was inadequate.
Lord Thomas LCJ said: ‘The jury must, in our view, judge the misconduct by considering objectively whether the provision of the information by the office holder in deliberate breach of his duty had the effect of harming the public interest. If it did not, then although there may have been a breach or indeed an abuse of trust by the office holder vis-a-vis his employers or commanding officer, there was no abuse of the public’s trust in the office holder as the misconduct had not had the effect of harming the public interest. No criminal offence would have been committed.’

Lord Thomas LCJ, Cranston, William Davis JJ
[2015] EWCA Crim 539, [2015] WLR(D) 146, [2015] Crim LR 633, [2015] 3 WLR 726, [2015] 1 QB 883, [2015] 2 Cr App R 10
Bailii, WLRD
Criminal Law Act 1977 1(1)
England and Wales
Citing:
Cited – Rex v Bembridge 1783
The defendant was an accountant in the office and place of receiver and paymaster general. The court was asked whether he held a public office.
Held: A man who holds a public office is answerable criminally to the king for misbehaviour in that . .
Cited – Regina v Dytham CACD 1979
A constable was 30 yards away from the entrance to a club, from which he saw a man ejected. There was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. The constable made no move to . .
Cited – Shum Kwok Sher 2002
Final Court of Appeal, Hong Kong. A senior government officer had used his position to provide preferential treatment to a company and its directors to whom he was related. He appealed against his conviction for misconduct in public office.
Cited – Attorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
Cited – Rex v Borron 1820
A criminal information was applied for against a magistrate.
Abbott CJ said: ‘They [magistrates] are indeed, like every other subject of this kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But, . .
Cited – Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway HL 1-Jul-1994
An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross . .
Cited – Regina v Misra; Regina v Srivastava CACD 8-Oct-2004
Each doctor appealed convictions for manslaughter by gross negligence, saying that the offence was insufficiently clearly established to comply with human rights law, in that the jury had to decide in addition and as a separate ingredient whether . .
Cited – Johnson v Youden KBD 1950
For a charge of aiding and abetting, the defendant must be shown to have been aware of the essential elements of his acts which constituted the complete crime. However, that may be inferred if a defendant shuts his eyes to the obvious.
Lord . .
Cited – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
Cited – Saik, Regina v HL 3-May-2006
The defendant appealed aganst his conviction for conspiracy to engage in moneylaundering. At trial he pleaded guilty subject to a qualification that he had not known that the money was the proceeds of crime, though he may have suspected that it . .

Lists of cited by and citing cases may be incomplete.

Crime, Media

Updated: 01 November 2021; Ref: scu.545002

Re Stannard In The Matter of The Criminal Justice Act 1988: Admn 5 May 2015

The defendant, a former barrister appealed against the confiscation order made on his conviction for defrauding the revenue, and the orders made consequent upon his default.
Held: The application was dismissed. It was entirely misguided and without merit. The defendant was out of the jurisdiction and was subject to a warrant for his arrest. He had engaged a McKenzie friend to act for him. He had sought to abuse his representative’s lack of experience simply to cause as much confusion and expense as he could.

Andrews DBE J
[2015] EWHC 1199 (Admin)
Bailii
Criminal Justice Act 1988
England and Wales

Criminal Sentencing, News, Legal Professions

Updated: 01 November 2021; Ref: scu.546287

Wyatt v Vince: SC 11 Mar 2015

Long delayed ancillary relief application proceeds

The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied for lump sum provision. W appealed against order made under the rules dismissing her claim.
Held: W’s appeal succeeded. The matter was remitted for consideration first for mediation: ‘It may however be helpful to suggest that the major issues requiring limited investigation by way of oral evidence seem at this stage to be the wife’s delay on the one hand and the disparate contributions to the care of the children on the other. These are, to my mind, the two magnetic factors. They pull in opposite directions and the question may ultimately prove to be whether, in the light also of the five difficulties identified in para 30 above, the wife’s delay is so potent a factor as not just to reduce but even to eliminate what might otherwise have been awarded to her by reference to contributions and possibly also to needs.’
As to the costs contribution order, the original order was made before the amendment to the 1973 Act, and under A v A. The costs allowance order should be restored and the Court of Appeal’s repayment order set aside.
Lord Wilson described FPR PD4A para 2.4 as ‘an unhelpful curiosity’: ‘I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 of Practice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable. Applications made after the applicant had remarried or after an identical application had been dismissed or otherwise finally determined would be examples of applications not legally recognisable. Since the greater includes the lesser, it is no doubt possible to describe applications which fall foul of Rule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4 of the Practice Direction remains in my view an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment.’

Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Hughes, Lord Hodge
[2015] UKSC 14, [2015] 1 FLR 972, [2015] 1 WLR 1228, [2015] Fam Law 524, [2015] 1 FCR 566, [2015] 2 All ER 755, [2015] WLR(D) 124, UKSC 2013/0186
Bailii, Bailii Summary, SC, SC Summary, WLRD
Family Proceedings Rules 24.2, Matrimonial Causes Act 1973 22ZA
England and Wales
Citing:
Appeal from – Vince v Wyatt CA 8-May-2013
The parties had divorced some twenty years previously, but apparently without ancillary relief orders, the parties at the time being relatively poor. H was now wealthy and W applied for lump sum provision. H replied that there was no no evidence . .
Cited – A v A (Maintenance Pending Suit: Payment of Legal Fees) FD 2001
The court made an order to provide that the monies paid by way of maintenance pending suit in respect of any matter can be brought into account by the judge making the order in the ancillary relief proceedings. . .
Appeal from – Vince v Wyatt CA 13-Jun-2013
(Subsidiary judgment) The former wife sought financial provision by way of a lump sum payment, but the application was made some twenty years after the divorce. Subsequently, H had become wealthy.
Held: The court set aside the orders of the . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Bridgeman v Brown CA 19-Jan-2000
A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence. Hale J, said: ‘the essence of a strike out is that one does not look at the evidence on . .
Cited – Currey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) and Others FD 24-Jan-1997
An agreement to deduct legal costs of proceedings from a divorce award was not champertous or unlawful. . .
Cited – Crossley v Crossley CA 19-Dec-2007
The parties had entered into a pre-nuptial agreement. On the ancillary relief proceedings on divorce, the husband sought to have the agreement taken into account by the court. It decided that the wife should give reasons why she considered that the . .
Cited – Pearce v Pearce CA 1980
H and W had separated in 1969 and for nine years the wife cared single-handedly for the three children. Until 1977 the husband was an undischarged bankrupt and had made no financial contribution to the running of the wife’s household, which was . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – M v L FD 28-Feb-2003
Ancillary relief application after long term separation – substantial contribution on the part of the wife in caring for the children, a 30-year delay in her bringing her application (following an overseas divorce) and a significant capital award . .

Cited by:
Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.544224

Hassan v The United Kingdom (GC): ECHR 16 Sep 2014

Grand Chamber – The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5-1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Held: ‘the powers of internment under the Third and Fourth Geneva Conventions, relied on by the Government as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5 – 1 of the Convention. The Court does not have any legitimate tools at its disposal, as a court of law, to remedy this clash of norms. It must therefore give priority to the Convention, as its role is limited under Article 19 to ‘[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’. By attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate understanding of the scope and substance of the fundamental right to liberty under the Convention, as reflected in its purpose and its historical origins in the atrocities of the international armed conflicts of the Second World War.’

Dean Spielmann, P
29750/09 – Grand Chamber Judgment, [2014] ECHR 936, [2014] ECHR 1162
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Coroners, Armed Forces, News

Updated: 01 November 2021; Ref: scu.536666

In re P and Q (Children: Care Proceedings: Fact Finding): FC 19 Mar 2015

pandQFC201503

The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner and the mother. None of the allegations, after substantial and careful investigation, were proved true. The mother and her partner had caused immense harm to both the children and the many people they had falsely accused, and had made that damage continuing by the publication, in probable contempt of court, of many details about the case. Those persisting with the allegations were acting either maliciously or foolishly.
Pauffley J summarised her conclusions: ‘Neither child has been sexually abused by any of the following – RD, teachers at CP School H. the parents of students at that school, the priest at the adjacent church, teachers at any of the H or H schools, members of the Metropolitan Police, social workers employed by the London Borough of X, officers of Cafcass or anyone else mentioned by Ms D or Mr C.
The children’s half brother, his father and stepmother – X and Y D – are likewise exonerated of any illicit or abusive acts involving the children.
There was no satanic or other cult at which babies were murdered and children were sexually abused.
All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.
The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr C in collaboration with Ms D.
Both children were assaulted by Mr C by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.
The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.’

Pauffley J
[2015] EWFC 26
Bailii
Citing:
Cited – In In Re T (Abuse: Standard of Proof) CA 19-May-2004
Dame Elizabeth Butler-Sloss P said that in abuse cases, evidence: ‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC 3-Mar-2010
The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .

Lists of cited by and citing cases may be incomplete.

Children, News

Updated: 01 November 2021; Ref: scu.544927

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz: CA 16 Jun 2016

The appellant challenged an order made in favour of his wife in proceedings to enforce a contract between them. He alleged that there had been no contract, and bias in the judge. The appellant had not attended to allow cross examination because as a member of the Saudi Royal family he claimed to have been instructed not to attend.
Held: The judge’s approach was unsatisfactory in failing to identify the questions needing to be answered if he were to decide whether an agreement of the kind alleged by Mrs. Harb had been made. In addition, he failed to carry out a proper evaluation of all the evidence in order to test its strengths and weaknesses. Those failures were sufficient to allow the appeal.
Lord Dyson MR emphasised the fact specific nature of such questions, and identified two stages in the decision: ‘First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The ‘real possibility’ test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias . . secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of thes
Obiter, the court considered the allegations abut the judge. He had earlier recused himself after a public dispute about the conduct of proceedings before him. He had in turn been publicly criticised by senior members of the set of counsel who now represented the appellant. The judge had responded by email to the criticism, and had distanced himself from them. The terms of that email were now severely criticised, but as a ground of appeal it must fail, the essence of the decision under appeal having been formed before the critical article.

Dyson MR L, Moore-Bick, McFarlan LJJ
[2016] EWCA Civ 556
Judiciary, Bailii
England and Wales
Citing:
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .

Cited by:
Cited – London Borough of Southwark, Regina (on The Application of) v London Fire and Emergency Planning Authority and Another Admn 15-Jul-2016
There had been a substantial and lethal fire. The Borough challenged a decision by the defedant to retain to itself the prosecution of possible offenders, saying that the defendant might possibly be itself subject to criticism.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions, News, Natural Justice

Updated: 01 November 2021; Ref: scu.565676

Ben Hoare Bell Solicitors and Others, Regina (on The Application of) v The Lord Chancellor: Admn 3 Mar 2015

The claimants challenged the legality of an amendment to the legal aid scheme made by the Civil Legal Aid (Remuneration) (Amendment)(No 3) Regulations 2014 SI 2014 No 607. The question is the legality of the introduction by the Remuneration Amendment Regulations of what can broadly be described as a ‘no permission, no fee’ arrangement for making a legally aided application for judicial review. There is also no entitlement to payment where permission has neither been granted nor refused, for example where the claim has been settled or withdrawn, but in such cases the amendment gives the Lord Chancellor power to pay the costs of making the application where he considers that it is reasonable to do so.
Held: In relation to incompatibility with statutory purpose, the scope of regulation 5A extends beyond the circumstances which can be seen as rationally connected to the stated purpose given for its introduction. To that extent it is inconsistent with the purposes of the scheme in LASPO, and this application succeeds.

Beatson LJ, Ouseley J
[2015] EWHC 523 (Admin)
Bailii
Civil Legal Aid (Remuneration) (Amendment)(No 3) Regulations 2014
England and Wales

Legal Aid, News

Updated: 01 November 2021; Ref: scu.543780

Morgan Stanley International v Posavec: EAT 2 Sep 2014

msi_posavecEAT1409

EAT Disability Discrimination : Disability – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke –
The Claimant put forward in her evidence a number of conditions which, she claimed, caused her to be disabled. They went beyond her pleaded case. The Employment Judge found that she was disabled; but he did not adequately identify what conditions she had which caused her to be disabled and whether they were the pleaded or some other conditions. There were factual issues as to whether any of the conditions was such as to cause substantial adverse effect, whether the Respondent knew of them and whether there had been any failure to make adjustments. It was incumbent, in the light of the issues between the parties, on the Employment Judge in his reasons to identify what the symptoms and conditions were by which the Claimant was disabled; he had failed to do so.
Similarly the Employment Judge’s reasons did not make clear what were the symptoms or conditions from which the Claimant suffered which supported his conclusion as to long term effect.
Appeal allowed and remitted to a fresh Tribunal.

Jeffrey Burke QC
[2014] UKEAT 0209 – 13 – 0209
Bailii
England and Wales

Employment, Discrimination, News

Updated: 01 November 2021; Ref: scu.536381

In re D (a Child): FD 31 Oct 2014

The two parents sought to challenge a decision that their child should be taken into care. Each parent had learning difficulties, but their income though small precluded the grant of legal aid. They wished to appeal against final care orders, but such cases did not come within the exemptions.
Held: Sir James Munby spoke of the severe inequity and consequences of the withdrawal of legal aid: ‘The father has a learning disability. He is a ‘protected party’ within the meaning of Rule 2.3 of the Family Procedure Rules 2010. As a matter of law he is not able, as a protected party, to act without a litigation friend. Quite apart from that, the father’s learning disability in any event requires him to have considerable support and assistance to be able to participate effectively in the proceedings. The Official Solicitor has agreed to act as his litigation friend. The Official Solicitor cannot be compelled to act as anyone’s litigation friend. His practice is to agree to act only if there is funding for the protected party’s litigation costs, because his own budget – the monies voted to him by Parliament – is not sufficient to enable him to fund the costs of litigation of the type the father is involved in. The Official Solicitor was willing to act here only because the father’s solicitor and counsel have agreed to act, thus far, pro bono. But without the protection against an adverse costs order which the father (and derivatively the Official Solicitor) would enjoy if the father had legal aid, the Official Solicitor has a possible exposure to an adverse costs order – for instance, if the local authority was to obtain an order for costs against him – which, understandably, he is unwilling to assume. The consequence is that the Official Solicitor was not willing to act as the father’s litigation friend unless Ms Stevens agreed, as she has, to indemnify him against any adverse costs orders. And as if all this was not enough – indeed, far more than enough – I am told that Ms Stevens has spent in excess of 100 hours, all unremunerated, working to resolve, thus far without success, the issue of the father’s entitlement to legal aid. This is devotion to the client far above and far beyond the call of duty.’

Sir James Munby P
SN14C00004
Judiciary
Civil Legal Aid (Financial Resources and Pa
yment for Services) Regulations 2013, Civil Legal Aid (Merits Criteria) Regulations 2013
England and Wales
Citing:
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Cited – A Father v SBC and Others CCF 23-May-2014
. .

Lists of cited by and citing cases may be incomplete.

Children, News, Legal Aid, Legal Professions

Updated: 01 November 2021; Ref: scu.538294

Secretary of State for The Home Department v ZAT and Others (Syria): CA 2 Aug 2016

Entry from Calais for Asylum Applicants

The Secretary of State appealed against orders granting entrance to seven respondents ordering that they be admitted to the UK from Calais with a view to determining their refugee status.
Held: The tribunal had failed to apply the correct test.

Moore-Bick, Longmore, Beatson LJJ
[2016] EWCA Civ 810, C2/2016/071
Bailii, Judiciary
Europran Convention on Human Rights 8
England and Wales

Immigration, News, Human Rights

Updated: 31 October 2021; Ref: scu.567882

Mosley v Google Inc and Another: QBD 15 Jan 2015

The claimant had successfully pursued action against a newpaper’s publication of a film of him engaging in sex with prostitutes, but others had retained copies of the film on-line. He now pursued an action against the search engine to oblige them to exclude such unauthorised films from their results. The defendant accepted that it operated as a data controller but objected on the grounds that the E-Commerce directive conflicted with the Data Protection rules requiring it to have the freedom to deliver its services.
Held: The defendant’s application that the claim be struck out failed. It could not be said that it had no prospect of success.

Mitting J
[2015] EWHC 59 (QB), [2015] EMLR 11
Bailii
Data Protection Act 1998 10 13 14, Directive 2000/31/EC
England and Wales
Citing:
Cited – L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited ECJ 12-Jul-2011
ECJ Grand Chamber – Trade marks – Internet – Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States – . .
Cited – Scarlet Extended Sa v Societe Belge Des Auteurs Compositeurs Et Editeurs (SABAM) ECJ 24-Nov-2011
ECJ Judgment – Information society – Copyright – Internet – ‘Peer-to-peer’ software – Internet service providers – Installation of a system for filtering electronic communications in order to prevent file sharing . .
Cited – Google Spain Sl v Agencia Espanola De Proteccion De Datos (AEPD), Gonzalez ECJ 13-May-2014
Internet Search Engine – Name Removal
ECJ Grand Chamber – Personal data – Protection of individuals with regard to the processing of such data – Directive 95/46/EC – Articles 2, 4, 12 and 14 – Material and territorial scope – Internet search engines . .

Cited by:
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

Information, European, News

Updated: 31 October 2021; Ref: scu.542202

Mackaill and Another, Regina (on The Application of) v Independent Police Complaints Commission: Admn 6 Oct 2014

The three claimants were police officers. They met a senior MP at Sutton Coldfield. They emerged from the meeting and were said to have made misleading statements as to the content of the meeting. The IPCC referred the matters back to local forces for investigation. The forces determined that there was no case to answer, but the IPCC then purported to redetermine the mode of investigation under powers asserted under the 2002 Act. The claimants denied that such a power existed. The first version of the report submitted by the investigator to the Chief Constables carried an appendix suggesting misconduct. A later version omitted the criticism despite the investigator persisting in his view.
Held: There was no allegation of bad faith, but there had been lamentable failures by those involved. There had been significant and material procedural errors. There was no report compliant with the statutory scheme produced, and the granting of relief in favour of the IPCC should not be withheld. Since no valid final report ever had been completed or supplied it followed that the investigation itself had not been concluded. Accordingly, the power under paragraph 15(5) was in principle available to be exercised by the IPCC.
Davis LJ, Wilkie
[2014] EWHC 3170 (Admin)
Bailii
Police Reform Act 2002
England and Wales
Citing:
Cited – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – Lovelock v Minister of Transport 1980
Lord Denning said: ‘Assuming that he did fail to take into account a relevant consideration, the result is that, in point of legal theory, his consent was ‘void’. It was made without jurisdiction. It was a nullity. Just as if he had failed to . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Bolt, Regina (on the Application of) v Merseyside Police and Another Admn 16-Nov-2007
A disciplinary panel had found the claimant police officer in breach of the relevant code of conduct. It decided that he should be dismissed. On a review, an independent Chief Constable upheld the finding of misconduct; but he purported to set aside . .
Cited – Regina v Warwickshire County Council Ex Parte Powergen Plc QBD 9-Jan-1997
The power to incorporate highway works in planning agreements is limited to subject land. Forbes J said: ‘It is common ground that the new Section 278 was intended to fit into and play its part in the overall legislative system for the controlled . .
Cited – Regina v Secretary of State for Home Department ex parte Danaei CA 12-Nov-1997
An immigration adjudicator, after a hearing, had rejected the applicant’s asylum appeal, but accepted that he had left Iran because he had had an adulterous relationship;
Held: The Home Secretary was wrong to depart from the special . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.537351

Emerald Supplies Ltd v British Airways: ChD 22 Jul 2015

The judge was hearing a very substantial action between the parties. He had recently travelled to Italy and came back on one of the defendant’s aircraft. The defendant lost the luggage of all passengers and had failed to deal adequately or at all with his complaint. Unfortunately the nature of the complaint had similarities with the facts alleged in the case.
Held: Peter Smith J recused himself: ‘In my view, this was a renewed attempt by BA to get me off the case and they have succeeded. Why have they succeeded, when I do not believe there are any legitimate grounds for making the application?
The simple fact of the matter is the way in which BA have approached it. I had a meeting with the lawyers as soon as I possibly could. The matter, in my view, could have been resolved quite quickly by proper investigation. Instead BA decided, through their lawyers, that I should immediately recuse myself and went down that road immediately. That, to my mind, is unfortunate. On many occasions during this case, when I have been case managing it, I made it clear that cases as complex as this require every lawyer, irrespective of their duty to their clients, to attempt to work together so that the case can be driven to court. This case is now seven years old and we have not even closed the pleadings. That is scandalous. The parties might say with fairness that not a lot of that is necessarily due to them, a sentiment with which I would agree. We all know where it lies. But there has certainly been exploitative attempts in relation to some of the difficulties.
But I have always tried to emphasise that the lawyers really ought to smooth the way. In my view, this could have been very easily smoothed out; unless, of course, BA have been caught out; in which case, of course, if they had just told me, then I would have come out of the case immediately. But they have not done that.’
Peter Smith J
[2015] EWHC 2201 (Ch)
Bailii
England and Wales
Citing:
See Also – Emerald Supplies Ltd and Another v British Airways Plc ChD 8-Apr-2009
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be . .
See Also – Emerald Supplies Ltd and Another v British Airways Plc CA 18-Nov-2010
. .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and Others (3514) ChD 28-Oct-2014
Two applications in this action: 1) The Defendants’ application for the striking out and/or summary dismissal of the Claimants’ claims in the torts of unlawful means conspiracy and unlawful interference; and 2) The Claimants’ application for two . .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and (3513) ChD 28-Oct-2014
A hearing of an Application whereby the Claimants requested the Court to review (with such judicial assistance as might be necessary) the appropriateness / lawfulness of the redactions made by the Defendant airline (‘BA’) and other airlines to the . .

Cited by:
Appeal from – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.550890

Rapisarda v Colladon (Irregular Divorces); FC 30 Sep 2014

References: [2014] EWFC 35
Links: Bailii
Coram: Sir James Munby P FD
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Held: It had been asserted that the English court had jurisdiction to entertain the petition in accordance with the Council Regulation on the basis that the petitioner was habitually resident and had been resident in England and Wales. In all but one case there was in fact no reason to think there had been any UK residence. The English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition. It was apparent that an Italian had been offering a service providing UK divorces to Italian nationals.
Petitions not having reached the stage of decree had now been dismissed. The decrees must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. It made no difference if one or other or both of the parties have re-married or even had a child.
Sir James summarised the law: ‘i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.’
Statutes: Domicile and Matrimonial Proceedings Act 1973 5(2), Council Regulation (EC) No 2201/2003, Matrimonial and Family Proceedings Act 1984, Family Procedure Rules 2010 7.5(1), Matrimonial Causes Act 1973 8
This case cites:

  • Cited – Ali Ebrahim -v- Ali Ebrahim (Queen’s Proctor intervening) ([1983] 1 WLR 1336)
    . .
  • Cited – Sheldon -v- Sheldon (The Queen’s Proctor Intervening) ([1865] EngR 180 (A), Commonlii, (1865) 4 Sw & Tr 75)
    Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of . .
  • Endorsed – Crowden -v- Crowden (The King’s Proctor showing cause) ((1906) 23 TLR 143)
    The normal practice of the Queen’s Proctor is not to adduce evidence in support of the plea on intervening in a divorce petition, and there is no need for him to do so where there is no answer to the plea. . .
  • Endorsed – Clutterbuck -v- Clutterbuck and Reynolds (Queen’s Proctor showing cause) ([1961] 105 Sol Jo 1012)
    The court considered the proper practice where the Proctor intervened in a divorce petition, but no answer was received from the parties. . .
  • Cited – Wiseman -v- Wiseman ([1953] P 79)
    A decree absolute of divorce which would otherwise be void, will still be void even though one of the parties has subsequently remarried and had a child. . .
  • Cited – Bater -v- Bater CA ([1906] P 209)
    The judgment of a divorce court dissolving a marriage is a judgment in rem, conclusively established the new status of the parties to the suit. A decree obtained in a foreign country by false evidence or by collusion in regard to the matrimonial . .
  • Cited – Lazarus Estates Ltd -v- Beasley CA ([1956] 1 QB 702, [1956] 1 All ER 341)
    There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
  • Cited – Callaghan -v- Hanson-Fox (Andrew) ([1992] Fam 1, [1991] 2 FLR 519)
    H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably . .
  • Cited – Moynihan -v- Moynihan (No 2) FD ([1997] 1 FLR 59)
    The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the . .
  • Cited – S -v- S (Ancillary Relief: Consent Order) FD (Gazette 11-Apr-02, [2002] 3 WLR 1372, [2003] Fam 1, [2002] 1 FLR 992, [2002] IDS Pensions Law Reports 219)
    An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
  • Cited – Marinos -v- Marinos FD (Bailii, [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018)
    The court was asked as to points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised). The greek father and english mother and their children had lived in Greece and England. W began . .
  • Cited – Kearly -v- Kearly FD ([2009] EWC 1876 (Fam), [2010] 1 FLR 619)
    . .
  • Cited – Leake -v- Goldsmith FD (Bailii, [2009] EWHC 988 (Fam), [2009] 2 FLR 684)
    . .
  • Cited – V -v- V FD (Bailii, [2011] EWHC 1190 (Fam), [2011] 2 FLR 778)
    The court was asked as to its jurisdiction to hear a divorce petition under the Regulation Brussels II Revised. . .
  • Cited – Tan -v- Choy CA (Bailii, [2014] EWCA Civ 251)
    This appeal concerns the fifth indent of Article 3(1)(a) of the Regulation, which provides that ‘[i]n matters relating to divorce . . jurisdiction shall lie with the courts of the Member State (a) in whose territory . . the applicant is habitually . .

Regina v Patel; 7 Nov 2014

Links: Judiciary
Coram: Singh J
Crown Court at Southwark. Remarks of Singh J on the sentencing of the defendant for acquiring a biological toxin, namely Abrin. A first package had been obained via a website, but was discarded. He sought a second package, but by then the seller had been arrested and US police conducted negotiations and he in turn was arrested.
Held: This was the first time an offence under the section of the Act had come for sentencing. 3 years was imposed.
Statutes: Biological Weapons Act 1974 1

In re P and Q (Children: Care Proceedings: Fact Finding); FC 19 Mar 2015

References: [2015] EWFC 26
Links: Bailiii
Coram: Pauffley J
The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner and the mother. None of the allegations, after substantial and careful investigation, were proved true. The mother and her partner had caused immense harm to both the children and the many people they had falsely accused, and had made that damage continuing by the publication, in probable contempt of court, of many details about the case. Those persisting with the allegations were acting either maliciously or foolishly.
Pauffley J summarised her conclusions: ‘Neither child has been sexually abused by any of the following – RD, teachers at CP School H. the parents of students at that school, the priest at the adjacent church, teachers at any of the H or H schools, members of the Metropolitan Police, social workers employed by the London Borough of X, officers of Cafcass or anyone else mentioned by Ms D or Mr C.
The children’s half brother, his father and stepmother – X and Y D – are likewise exonerated of any illicit or abusive acts involving the children.
There was no satanic or other cult at which babies were murdered and children were sexually abused.
All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.
The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr C in collaboration with Ms D.
Both children were assaulted by Mr C by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.
The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.’
This case cites:

  • Cited – In In Re T (Abuse: Standard of Proof) CA (Bailii, [2004] EWCA Civ 558, [2004] 2 FLR 838, [2004] Fam Law 709)
    Dame Elizabeth Butler-Sloss P said that in abuse cases, evidence: ‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an . .
  • Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL (Bailii, [2008] UKHL 35, [2008] 2 FLR 141, HL, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] Fam Law 837, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] 4 All ER 1)
    There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
  • Cited – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC (Bailii, [2010] UKSC 12, SC, UKSC 2010/0031, SC Summ, Times, [2010] Fam Law 449, [2010] 2 All ER 418, [2010] 1 FLR 1485, [2010] PTSR 775, [2010] 1 FCR 615, [2010] 1 WLR 701, Bailii Summary)
    The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .