Category: Human Rights

Beaulane Properties Ltd v Palmer: ChD 23 Mar 2005

The paper owner sought possession of land. The defendant said he had acquired a possessory title. The land was registered.
Held: The claimant’s human rights under article 1 were engaged. To be justifiable, the interference in that right had to be ‘in the public interest’. The limitation rules were enacted by the State for public purposes, to achieve certainty and to prevent the court having to adjudicate on stale claims. In land claims the rules had wider purposes than to regulate as between owner and trespasser. The effect on land claims was to deprive the land owner of his land. The state had a wide margin. When the Land Registration system was enacted the main considerations included matters such as adjustment of boundaries. However ‘the expropriation of registered land withouty compensation in the circumstances of this case did not advance any of the legitimate aims of the statutory provisions and was disproportionate’ The claimant’s loss of his land under section 75 of the 1925 Act was disproportionate.

Judges:

Nicholas Strauss QC

Citations:

Times 13-Apr-2005, (2005) 14 EGCS 129, [2005] EWHC 817 (Ch), [2006] Ch 79

Links:

Bailii

Statutes:

European Convention on Human Rights 81, Land Registration Act 1925 75

Jurisdiction:

England and Wales

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – J A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
No longer correct – Ofulue and Another v Bossert CA 29-Jan-2008
The claimants appealed an order finding that the defendant had acquired their land by adverse possession. They said that the defendant had asserted in defence to possession proceedings that they were tenants, and that this contradicted an intent to . .
Cited – Lancashire County Council v Buchanan Admn 7-Nov-2007
The defendant estate agent was prosecuted for misdescribing the ability of his client to convey good title to the land offered. The seller did not initially have a registered possessory title to part of the land.
Held: The agent’s appeal . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Limitation, Registered Land, Limitation

Updated: 29 September 2022; Ref: scu.224111

Balogh v Hungary: ECHR 20 Jul 2004

Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion of domestic remedies) ; Violation of Art. 3 ; No violation of Art. 13 ; No violation of Art. 6-1 ; No violation of Art. 14 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

47940/99

Jurisdiction:

Human Rights

Human Rights

Updated: 29 September 2022; Ref: scu.199917

CM v Bradford Metropolitan District Council, Secretary of State for Work and Pensions: UTAA 7 Oct 2020

Housing Benefit – whether limiting housing benefit to the one-bedroom shared accommodation rate in accordance with reg 13D(2) of the Housing Benefit Regulation 2006 amounted to unlawful disability discrimination contrary to Article 14 European Convention on Human Rights – application of the `manifestly without reasonable foundation’ test – whether proportionality assessment still required.

Citations:

[2020] UKUT 285 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Benefits, Human Rights

Updated: 29 September 2022; Ref: scu.659509

ABC v Google Llc: QBD 14 Nov 2019

The claimant complained that the defendant was publishing material relating to an historic conviction which was now spent. He had applied for anonymity, and had been granted it temporarily, but had since failed to comply with an order requiring him to identify himself to the court and to the defendant. He applied from relief from sanctions in respect of that failure, namely the striking out of his claim.
Held: Refused. The application was in substance, an improper attempt to circumvent his failed appeal against the Order of Mr Justice Nicklin: ‘This is a paradigmatic example of the conduct of a litigant which has prevented the court and the parties from conducting the litigation efficiently and at proportionate cost. The Claimant has shown no respect for the Orders of this Court.’

Citations:

[2019] EWHC 3020 (QB)

Links:

Bailii

Statutes:

Rehabilitation of Offenders Act 1974

Jurisdiction:

England and Wales

Human Rights, Media, Defamation

Updated: 29 September 2022; Ref: scu.645952

Modaresi, Regina (on The Application of) v Secretary of State for Health and Others: CA 23 Nov 2011

The appellant had been detained under the 1983 Act. Her appeal had been declined as out of time, and she now appealed against rejection of her request for judicial review.
Held: The appeal failed, even though the application to the tribunal should have been treated by it as in time, and the claim against the Trust accordingly failed, as it was not its oversight which resulted in the deadline being missed. The claim against the Secretary of State was also dismissed. He had been under no separate duty to check the time limit for himself, no doubt having been raised on that point in the solicitors’ letter. In relation to article 5(4) the only suggested disadvantage of her right to apply under section 3, as compared to section 2, was the potential loss of the right to make a further application within six months, which had been properly addressed in the Secretary of State’s offer to reconsider the use of section 67 in the future.
Black LJ said: ‘What article 5(4) requires is that a patient should have the entitlement to take proceedings to have the lawfulness of his or her detention decided speedily by a court; the appellant had that entitlement under section 66(1) in association with her detention under section 3. Article 5(4) does not prescribe further than that. If there came a time when having unsuccessfully used up her section 3 application at an early stage, the appellant wished to make a further application to the tribunal, she was entitled to ask the Secretary of State again to refer her case to the tribunal under section 67 and he had indicated that he would consider so doing. Of course, that was not a guarantee that he would refer it and to that extent the appellant’s position was less favourable than it would have been had she not had to use her section 3 application in the first place. But the Secretary of State is bound to exercise his discretion under section 67 in accordance with normal public law principles and judicial review would be available to the appellant should he fail to do so, thus ensuring that there would be no breach of article 5(4). Accordingly, I do not consider that the disadvantage to the appellant of having to use up her section 3 application at an early stage was such as to make it unlawful for the Secretary of State to decline to exercise his section 67 power in the expectation that she would do so.’

Judges:

Mummery, Richards, Black LJJ

Citations:

[2011] EWCA Civ 1359, [2012] ACD 37, [2012] PTSR 999

Links:

Bailii

Statutes:

Mental Health Act 1983 3 2 66, European Convention Human Rights 5(4)

Jurisdiction:

England and Wales

Citing:

Appeal From – Modaresi, Regina (on The Application of) v Secretary of State for Health and Others Admn 3-Mar-2011
The claimant sought judicial review of her detention under section 2 of the 1983 Act.
Held: The request was rejected. The tribunal had been correct to treat the original application as out of time. The Secretary of State’s decision was neither . .

Cited by:

Appeal from – Modaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 28 September 2022; Ref: scu.449014

ABC Ltd v Y: ChD 6 Dec 2010

There had been proceedings as to the misuse of confidential information. X, a non-party, now sought disclosure of papers used in that case. The case had been settled by means of a Tomlin Schedule, and that, subject to further order, non-parties might not obtain documents on the court file.
Held: The applicant X was entitled to access a full copy of the Consent Order, but not the Schedule to it nor any of the other documents sought.
The court may not restrict disclosure of a public judgment or order. A party paying the fee can have a copy. The court’s power to restrict disclosure of documents on the court file applies only to statements of case.
However, the third party’s entitlement was to a copy only of the order as it existed on the court file. Since the Schedule was not filed at court, there was no entitlement to a copy of the Schedule.
However, where documents have been read out to the court in delivering judgment or otherwise at a public hearing, the principle of open justice means that if the applicant can show a ‘legitimate interest’ in having access, the court should lean in favour of disclosure.
Where the court has restricted access to documents on the court file or the documents in question were filed for a private hearing, the proper test was whether there are ‘strong grounds for thinking that it is necessary in the interests of justice’ for the documents to be disclosed.

Judges:

Lewison J

Citations:

[2010] EWHC 3176 (Ch), [2011] 4 All ER 113, [2012] 1 WLR 532

Links:

Bailii

Statutes:

Civil Procedure Rules 5.4C, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Hodgson and others v Imperial Tobacco Limited Gallagher Limited etc CA 12-Feb-1998
A large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. A hearing . .
Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Cited – Chan U Seek v Alvis Vehicles Ltd ChD 8-Dec-2004
A newspaper, not party to the proceedings, sought access to the Court files, anticipating a significant journalistic story.
Held: Park J allowed the application for copies of certain pleadings and witness statements that had been placed before . .
Cited – Dian AO v Davis Frankel and Mead 2005
Moore-Bick J discussed the principle of open justice, saying that the highest importance was to be attached to the principle and that it was for that reason that in ‘all but exceptional cases’ hearings are conducted in public, judgment is delivered . .
Cited – Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd TCC 31-Aug-2005
A third party television company sought access to the particulars of claim and other pleadings.
Held: HH Judge Wilcox said: ‘There can be no legitimate distinction drawn between decisions made in interlocutory proceedings and those at final . .
Cited – Taranissi, Regina (on the Application of) v Human Fertilisation and Embryology Authority Admn 14-Jan-2009
The BBC sought permission to inspect a class of documents on the court file in judicial review proceedings. The reason for the application was that the documents were likely to contain information relevant to a libel action in which Mr Taranissi was . .
Cited – G and G v Wikimedia Foundation Inc QBD 2-Dec-2009
The claimants sought an order that the defendants, an internet company in Florida, should disclose the IP address of a registered user of the site with a view to identifying the user and pursuing an action against him or her.
Held: Tugendhat J . .
Cited – Gray v UVW QBD 21-Oct-2010
Application was made for the name of the defendant not to be published.
Held: To the extent that a claimant seeks an order for the anonymisation of any reports of the SOPO proceedings, then that jurisdiction derives from section 6(1) of the . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 27 September 2022; Ref: scu.426850

Ignaccolo-Zenide v Romania: ECHR 2000

‘Although coercive measures towards children are far from desirable in such sensitive matters, sanctions should not be ruled out where the parent living with the children acts unlawfully.’

Citations:

(2000) 31 EHRR 212

Jurisdiction:

Human Rights

Cited by:

Mentioned – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
See Also – Ignaccolo-Zenide v Romania ECHR 25-Jan-2000
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 27 September 2022; Ref: scu.195619

Shahid v Scottish Ministers: SCS 18 Nov 2011

(Outer House Court of Session) The petitioner complaine dthat whilst serving a very long term of imprisonment, he had been held in segregation for almost five years, and that this contravened the Prison Rules and his human rights.
Held: The claim was refused.

Judges:

Lord Malcolm

Citations:

[2011] ScotCS CSOH – 192, 2012 Rep LR 2, 2011 GWD 40-816, 2012 SLT 178

Links:

Bailii

Statutes:

European Convention on Human Rights 3 8, Prisons and Young Offenders Institutions (Scotland) Rules 1994

Jurisdiction:

Scotland

Cited by:

Appeal from – Shahid v The Scottish Ministers SCS 31-Jan-2014
The appellant was serving a long term of imprsonment, and now complained that he had been held in segregation for over 4 years, saying that this was ahgainst the Prison Rules and against his human rights.
Held: The Extra Division refused the . .
At Outer House – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 26 September 2022; Ref: scu.448552

Jude v Her Majesty’s Advocate: SC 23 Nov 2011

The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of the decision in Cadder.
Held: (Lord Kerr dissenting) The prosecutor’s appeals failed. No time bar applied under section 100 of the 1998 Act. Criminal appeals under section 57(2) were made by virtue of the 1998 Act. The legislation distinguished beween bringing proceedings on the basis of Convention rights, and relying on them ‘in any such proceedings.
In two cases the appeals failed, but the defendant Birnie had been offered and had declined legal assistance at the police station, and the appeal by HMA succeeded.
Lord Kerr dissentimng, said: ‘For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. I do not understand the majority in this case to suggest otherwise.’

Judges:

Lord Hope, Deputy President, Lord Brown, Lord Kerr, Lord Dyson, Lord Hamilton

Citations:

[2011] UKSC 55, 2012 SCCR 88, 2012 SLT 75, 2011 GWD 38-779, 2012 SCL 130, UKSC 2011/0150

Links:

Bailii, Bailii Summary, SC, SC Summary

Statutes:

Criminal Procedure (Scotland) Act 1995 14 15, European Convention on Human Rights 6(3)(c) 6(1), Scotland Act 1998 57(2) 100(3B)

Jurisdiction:

Scotland

Citing:

Appeal from – Jude and Others v Her Majesty’s Advocate HCJ 11-May-2011
. .
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – Martin v Her Majesty’s Advocate SC 3-Mar-2010
The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Manuel v HM Advocate HCJ 25-Jun-1958
In order to be found to be voluntarily given, a suspect’s statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said. . .

Cited by:

Cited – Saunders v Regina CACD 26-Jun-2012
The defendant sought leave to appeal after a ruling that her refusal to take legal advice during police interview had been informed and voluntary. The interviewing officer had adopted a policy of always giving disclosure where the suspect was . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights, Criminal Evidence

Updated: 26 September 2022; Ref: scu.448487