Lee v Leeds City Council; Ratcliffe and Others v Sandwell Metropolitan Borough Council: CA 21 Jan 2002

The claimants were tenants who sought damages from their local authority landlords, for failing to remedy defects such as mould, mildew, and condensation in the dwellings let to them. The defects were a result of the design of the building. They asked the court to revisit the law settled in the Quick case in the light now of the Human Rights Act.
Held: Quick was not decided per incuriam. There was neither common law nor statutory reason to think that a general burden such as that requested was in fact imposed by law. The law allowed for repair of properties where the defect was one which arose from being ‘out of repair’. The Human Rights Act and the Convention did not assist the claimants.

Lord Justice Chadwick, Lord Justice Tuckey and Sir Murray Stuart-Smith
Times 29-Jan-2002, Gazette 06-Mar-2002, [2002] EWCA Civ 6, [2002] 1 EGLR 103
Bailii, Bailii
Human Rights Act 1998 6, European Convention on Human Rights Art 8, Landlord and Tenant Act 1985 11, Defective Premises Act 1972 4
England and Wales
CitedQuick v Taff Ely Borough Council CA 1986
Because of fungus, mould growth and dampness, the tenant’s council house was virtually unfit for human habitation in the winter when the condensation was at its worst. Section 32(1) of the 1961 Act implied in the tenancy a covenant by the council to . .

Cited by:
CitedDunn v Bradford Metropolitan District Council etc CA 31-Jul-2002
The applicants were local authority secure tenants. Possession orders had been made, but they sought delay in the order after they had already surrendered possession.
Held: Parliament had given wide discretion to the courts to find a balance . .

Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 27 January 2022; Ref: scu.167481

Shepherd v The Information Commissioner: CACD 18 Jan 2019

The defendant had been part of an organisation subject to an investigation of child sex abuse. He was cleared of involvement, but had disseminated the confidential reports containing sensitive personal data to support his contention that the process was being misused. He appealed from his conviction under the 1998 Act, saying that the burden of proof on him raising a defence was evidential, and not legal as had been applied by the court.
Held: The appeal was allowed. s.55(2) imposes no more than an evidential burden of proof.

Davis LJ, Jay J, Judge Dean QC
[2019] EWCA Crim 2, [2019] WLR(D) 32
Data Protection Act 1998 55
England and Wales
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedRegina v S (Trade Mark Defence) (Roger Sliney v London Borough of Havering) CACD 20-Nov-2002
The defendant alleged that the offence of which had been convicted, under the 1994 Act, infringed his rights under article 6.2 in reversing the burden of proof.
Held: The principle that the duty of proof lay on the prosecution was subject to . .
CitedRegina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
CitedSheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .

Lists of cited by and citing cases may be incomplete.

Crime, Information, Human Rights

Updated: 27 January 2022; Ref: scu.633288

Secretary of State for Justice v Staffordshire County Council and Another: CA 22 Dec 2016

‘The issue in this case is whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (‘the Convention’), it is necessary for a welfare order to be made by the Court of Protection (‘the CoP’) pursuant to the Mental Capacity Act 2005 (‘the MCA’) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (‘Article 5(1)’).’

Sir Terence Etherton MR, Elias, Beatson LJJ
[2016] EWCA Civ 1317
European Convention on Human Rights 5(1)
England and Wales

Human Rights, Health

Updated: 27 January 2022; Ref: scu.572741

Club Hotel Loutraki and Others v Commission: ECJ 21 Dec 2016

ECJ Judgment – Appeal – State aid – Operation of Video Lottery Terminals – Grant by a Member State of an exclusive licence – Decision finding no State aid – Article 108(3) TFEU – Regulation (EC) No 659/1999 – Articles 4, 7 and 13 – Failure to initiate the formal investigation procedure – Concept of ‘serious difficulties’ – Date of the assessment – Article 296 TFEU – Charter of Fundamental Rights of the European Union – Article 41 – Obligation to state reasons – Article 47 – Right to effective judicial protection – Article 107(1) TFEU – Concept of ‘economic advantage’ – Joint assessment of the measures notified

C-131/15, [2016] EUECJ C-131/15
Charter of Fundamental Rights of the European Union 41

Human Rights

Updated: 27 January 2022; Ref: scu.572571

Bowman v Pensionsversicherungsanstalt: ECJ 21 Dec 2016

ECJ Judgment – Reference for a preliminary ruling – Social policy – Charter of Fundamental Rights of the European Union – Directive 2000/78 / EC – Equal treatment in employment and occupation – Article 2 (1) and (2) – Discrimination on grounds of age – Collective labor agreement – Extension of the period from the first to the second scale – Unequal treatment on the basis of age

C-539/15, [2016] EUECJ C-539/15
Charter of Fundamental Rights of the European Union

Discrimination, Human Rights

Updated: 27 January 2022; Ref: scu.572568

Watts v Stewart and Others: CA 8 Dec 2016

The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs Watts was a beneficiary of the Charity, her occupation was that of tenant at will of the trustees. The status of a beneficiary occupying trust property will depend upon the terms and conditions on which the occupation was permitted. The beneficiary may be the tenant for life under a settlement. The terms of the trust may expressly permit the trustees to grant a tenancy or a licence to a beneficiary on particular terms. If a beneficiary is permitted to occupy trust property without any express terms stated or agreed and without any governing provision of the trust instrument to throw light on those terms and conditions, the occupation status of the beneficiary will depend upon the proper conclusion to be drawn from all the admissible evidence as to whether it was intended that the beneficiary should occupy as licensee or in some other capacity. In the present case, for the reasons we have given, the terms on which Mrs Watts was permitted to occupy the property excluded the grant of legal possession. There is simply no scope in those circumstances to infer the grant of a tenancy at will.’

Sir Terence Etherton MR, Arden DBE, Lloyd Jones LJJ
[2016] EWCA Civ 1247, [2016] WLR(D) 666, [2017] 1 P and CR DG18, [2017] L and TR 24, [2017] 2 WLR 1107, [2017] HLR 8
Bailii, WLRD
England and Wales
CitedAllan v Liverpool Overseers 1874
The court was asked whether a steamship company was liable to be rated in respect of its occupation of sheds which it occupied under a licence from the Mersey Docks and Harbour Board. The court noted that liability for rates fell only on a person . .
CitedErrington v Errington and Woods CA 19-Dec-1951
There was a contract by a father to allow his son to buy the father’s house on payment of the instalments of the father’s Building Society loan.
Held: Denning LJ reviewed the cases and said: ‘The result of all these cases is that, although a . .
CitedStreet v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
CitedGray and others v Taylor CA 2-Apr-1998
A right of occupation given by an almshouse under a charitable trust was an occupation under a licence without right of possession, not an assured tenancy. The plaintiff’s conditions of occupancy stated: ‘Residents are licensees and pay a . .
CitedEarl of Pomfret v Lord Windsor (1) 30-Jul-1752
An occupying beneficiary under a settlement, who was in possession by permission of the trustees, was a tenant at will to the trustees. . .
CitedRadaich v Smith 7-Sep-1959
(High Court of Australia) Justice Windeyer said: ‘What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and . .
CitedLarkos v Cyprus ECHR 18-Feb-1999
The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .
CitedBlecic v Croatia ECHR 29-Jul-2004
The applicant had for many years before 1992 had a protected tenancy of a publicly-owned flat in Zadar. Under Croatian law a specially-protected tenancy might be terminated if the tenant ceased to occupy the flat for a continuous period of six . .
CitedNiholas v Secretary of State for Defence ChD 1-Aug-2013
The claimant had been the wife of a military officer, and occupied a property licensed to him by the defendant. They divorced and he left, and she now resisted grant of possession to the defendant.
Held: The claimant failed. However, there was . .
CitedNicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
CitedDi Palma v United Kingdom ECHR 1-Dec-1986
(Commission/admissibility) The applicant’s lease was forfeited on her non-payment of a service charge and possession was ordered. Her primary claim was made (unsuccessfully) under article 1 of the First Protocol to the Convention. But she also . .
CitedWood v United Kingdom ECHR 2-Jul-1997
(Commission decision as to admissibility) The applicant’s house had been repossessed by a mortgagee when she defaulted on her payments due under the mortgage. Her complaint was found to be manifestly ill-founded, saying ‘In so far as the . .
CitedLondon 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 . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedMcDonald v McDonald and Another CA 24-Jul-2014
The appellant had a personality dosorder. Her parents bought a house and granted her series of assured shorthold tenancies. After they fell into rrears on the morgtgage, the bank appointed receivers. The rent then also hell into arears, and they . .
CitedSouthward Housing Co-Operative Ltd v Walker and Another ChD 8-Jun-2015
The court was asked as to the nature and effect of tenancies for life granted by fully mutual housing co-operatives and in particular how they can lawfully be brought to an end and a possession order obtained. The tenants sought a declaration of . .

Cited by:
CitedWatkins, Regina (on The Application of) v Newcastle Upon Tyne County Court and Another Admn 2-May-2018
Whether almshouse tenant had been in breach of terms of letter of appointment, and whether the agreement was in fact a tenancy. . .

Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 27 January 2022; Ref: scu.572423

Paposhvili v Belgium: ECHR 13 Dec 2016

41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)), [2016] ECHR 1113
European Convention on Human Rights
Human Rights
See AlsoPaposhvili v Belgium ECHR 17-Apr-2014
. .

Cited by:
Not applicableEA and Others (Article 3 Medical Cases – Paposhvili Not Applicable : Afghanistan) UTIAC 7-Aug-2017
The test in Paposhvili v Belgium, 13 December 2016, ECtHR (Application No 41738/10) is not a test that it is open to the Tribunal to apply by reason of its being contrary to judicial precedent. . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 27 January 2022; Ref: scu.572378

Re V (A Child): CA 12 Oct 2004

The local authority had succeeded in its application for a freeing order, but the judge had also found that it had infringed the parents human riights by the way it had acted toward them before the birth of V, and had awarded sums of damages for that breach. The authority appealed against that finding.
Held: The order was indeed extraordinary. The appeal was allowed.

Thorpe, Wall, LJJ, Holman J
[2004] EWCA Civ 1575, [2006] 2 FCR 121, [2005] 1 FLR 627, [2005] Fam Law 201, [2005] UKHRR 144
England and Wales

Children, Human Rights

Updated: 27 January 2022; Ref: scu.572364

Eurosaneamientos and Others v ArcelorMittal Zaragoza SAand Others: ECJ 8 Dec 2016

ECJ (Judgment) Reference for a preliminary ruling – Services provided by Procuradores de los Tribunales – Tariff – Jurisdictions – Derogation impossible

ECLI:EU:C:2016:932, [2016] EUECJ C-532/15

Human Rights, Legal Professions

Updated: 27 January 2022; Ref: scu.572320

Pwr and Others v Director of Public Prosecutions: Admn 3 Apr 2020

Lord Justice Holroyde Mr Justice Swift
[2020] EWHC 798 (Admin), [2020] Crim LR 731, [2020] WLR(D) 217, [2020] 2 Cr App R 11, [2020] 1 WLR 3623
Bailii, WLRD
Terrorism Act 2000 13(1), European Convention on Human Rights, Human Rights Act 1998
England and Wales
Cited by:
Appeal fromPwr v Director of Public Prosecutions SC 26-Jan-2022
The appellants carried a flag of the Kurdistan Workers Party, a proscribed organisation at a demonstration, and were convicted of a section 13(1) offence. The Crown Court dismissed their appeals, holding that section 13(1) created an offence of . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 27 January 2022; Ref: scu.649806

Perincek v Turkey: ECHR 21 Jun 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 10; Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings.

46669/99, [2005] ECHR 415, [2005] ECHR 415
Worldlii, Bailii
Human Rights

Human Rights

Updated: 27 January 2022; Ref: scu.227331

Warren v Care Fertility (Northampton) Ltd and Another: FD 6 Mar 2014

‘Mrs W seeks a Declaration that it is lawful for the sperm of her husband Warren Brewer who died on 7 February 2012 to be stored beyond 18 April 2015 and for a period of up to 55 years until 18 April 2060 so that it can be used by her for the purposes of conceiving a child or children.
I have granted that Declaration.
Sadly Mr B was diagnosed with a brain tumour in about April 2005. After operative treatment he required radiotherapy. A well-known likely consequence of such treatment would be to render him infertile.
He wished to keep open his option open to become a father of his own child. Thus he was referred to the Clinic for collection and storage of sperm before he received radiotherapy. This was undertaken in April 2005.
Mrs W met Mr B in 2004. Over the years the relationship developed and deepened, they became engaged to be married in October 2010 and were married in December 2011 in the Hospice shortly before his death.
They had spoken of marriage, a life long commitment, and the prospect of having children. It was their mutual wish to become parents. In 2008 Mr B formally named Mrs W as ‘his partner’ to enable her to use his sperm after death, and for him to be named on the birth certificate of any child created with his sperm. He subsequently told Mrs W that he had done this, and as he wanted to enable her to have his children if she wished. Thereafter it was an accepted matter as between them.
I have heard Mrs W in evidence and read statements from his parents and consultant oncologist who make it clear what he wished and intended.
I am satisfied that after 2008 Mr B never changed his mind and wanted Mrs W to have the opportunity to have his child, or children, after his death.
The Human Embryo and Fertilisation Act 1990 as amended provides for a deceased’s sperm to be used by ‘his named partner’ to create an embryo. The initial maximum storage period was established as 10 years. The 2009 Regulations enable the extension of that period, subject to certain requirements under Regulation 4 or 7.
Notwithstanding his wishes and intentions and various written consents Mr B did not provide written consent as required by the Regulations, nor did he provide the requisite medical certificate. This was through no fault of his own. The clinic upon which the obligation fell failed to give him relevant information as to the requirements of the Regulations and failed to obtain the requisite long-term consent from him or the appropriate medical opinion.
I am satisfied had he known what was required he would have done that which was necessary. As it was he was not given the information, not advised and thus he did not fulfil the requirement of the Regulations. However, when asked he signed every consent form sent to him, particularly the consent forms for storage, but they were limited in time by the clinic and associated with their own requirements for payment of fees.
I have been critical of the clinic in that respect. After The Human Embryo and Fertilisation Authority learnt of this case it issued further guidance on 31 May 2012 to storage centres. The Authority recognised the clinic and other storage centres, being anxious to secure their fees for storage for a limited period had not or may not have obtained a longer term consent from the sperm provider. The Authority was anxious that the circumstances of this case should not arise in the future.
The Human Rights Act 1998 has come to the aid of Mrs W. Specifically Section 3 and Article 8.
Section 3(1) : ‘So far as it is possible to do so primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention (Human Rights) rights.
Article 8: ‘Everyone has a right to respect for his private and family life. The state shall not interfere with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder of crime, for the protection of health or morals or for the protection of the rights and freedoms of others’.
I have held that Mrs Warren has a right under Article 8 in that she has the right to decide to become a parent by her deceased husband, for which he had made provision and which would accord with his wishes and intentions.
I have considered the exceptions set out in Article 8. None of them apply to this case. In my view the state should not interfere with Mrs Warren’s right under Article 8, and following English case law (Ghaidon -v- Godin-Mendoza 2004 2AC 557). I have interpreted the statutory legislation with ‘a broad approach concentrating in a purposive way on the importance of the fundamental right involved’ per Lord Steyn.
For these reasons I have made the Declaration.
The Human Fertilisation and Embryology Authority, while resisting Mrs Warren’s application, have expressed its sympathy for her. May I also add my great sympathy for her. She fell in love with a man, cared for him and loved him. He wanted her to have the opportunity to have his children if she wanted. She has suffered an enormous loss. I know she is supported by her parents-in-law. I wish her and Mr Brewer’s parents well, and ultimately whatever her decision may be I wish her and the family much happiness after such a difficult and sad time.’

Mrs Justice Hogg
[2014] EWHC 602 (Fam), [2014] Fam Law 803, [2014] 2 FCR 311, [2014] 3 WLR 1310, [2014] 2 FLR 1284, [2015] 1 Fam 1, [2014] WLR(D) 135, [2014] Med LR 217
Bailii, WLRD
England and Wales

Health, Human Rights

Updated: 27 January 2022; Ref: scu.522561