SLL v Priory Health Care And, Secretary of State for Justice: UTAA 18 Oct 2019

Mental Health – Restricted Patient – where at least one of s.72(1)(b) criteria not met what is proper test for deciding whether the discharge should be absolute or conditional? What factors must the Tribunal consider when assessing whether it is ‘appropriate’ for the patient to continue to be liable to recall to hospital for further treatment?

Citations:

[2019] UKUT 323 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 05 December 2022; Ref: scu.651664

Revenue and Customs v Royal Opera House Covent Garden Foundation:: UTTC 22 Apr 2020

VAT – Partial exemption – whether costs of staging productions have a direct and immediate link to taxable supplies of catering and ice creams – no – appeal allowed – Articles 1,168 and173 Principal VAT Directive – ss 24, 25 and 26 VATA 1994

Citations:

[2020] UKUT 132 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

VAT

Updated: 05 December 2022; Ref: scu.651195

Director of Border Revenue v Dockett (Excise Duty – Border Force Decision To Refuse Restoration of Private Car): UTTC 29 Apr 2020

EXCISE DUTY – Border Force decision to refuse restoration of private car – FTT held Border Force decision unreasonable and directed further review taking into account FTT finding that goods not being carried for resale at a profit – effect of Jones and Jones – whether FTT erred in law – yes – appeal allowed

Citations:

[2020] UKUT 141 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Customs and Excise

Updated: 05 December 2022; Ref: scu.651191

London Borough of Barnet (Local Government): ICO 4 Nov 2019

The complainant has requested information about a particular box junction. The London Borough of Barnet denied holding some of the requested information and refused to provide the remainder as it estimated that the cost of complying with the request would exceed the appropriate limit. The Commissioner’s decision is that complying with the request would exceed the appropriate limit and therefore the London Borough is entitled to rely on section 12 to refuse the request. However, she also finds that the London Borough’s advice and assistance has not complied with its obligations under section 16 of the FOIA. The Commissioner requires the London Borough to take the following steps to ensure compliance with the legislation: provide the complainant with advice and assistance to help her refine her request to within the appropriate limit.
FOI 16: Complaint upheld FOI 12: Complaint not upheld

Citations:

[2019] UKICO fs50862681

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.650325

Gedling Borough Council (Local Government): ICO 4 Nov 2019

The complainant has requested information relating to a complaint they have raised about a specific Councillor. Gedling Borough Council (‘the Council’) disclosed some information in response to the request but redacted the majority of the information because it considered that the information within scope was the personal data of third parties and that disclosure would breach the GDPR principles. The Commissioner’s decision is that, as the information concerns events involving the complainant which led to them raising the complaint, all of the information falling within the scope of the request is in fact the complainant’s own personal data. She has therefore applied section 40(1) of the FOIA proactively to prevent disclosure of the withheld information. The Commissioner does not require the Council to take any further steps
FOI 40: Complaint not upheld

Citations:

[2019] UKICO fs50851255

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.650296

Morgan v Marquis: 2 Nov 1853

The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed an act of bankruptcy. The defendants afterwards sold the flour. Perrin was petitioned in and adjudicated bankrupt. The assignees in bankruptcy brought an action to recover the proceeds of the sale.
Held: The action could not succeed: ‘The defendants sold the goods in question after the bankruptcy by the direction of Shute; and I am of opinion that they were justified in so doing, since they had the authority of the solvent partner, who had a right to deal with the property as his own.’ (Parke) ‘Shute, the solvent partner, directed the defendants to sell the flour. Now it is clear that one tenant in common may dispose of the common property; and therefore, when the flour was sold by the defendants, it was properly sold so far as Shute was concerned. Then the effect of the bankruptcy was to render the assignees tenants in common of the goods with Shute. But it is well established that one tenant in common cannot maintain an action against his companion, unless there has been a destruction of the particular chattel or something equivalent to it. That being so, the defendants are not wrong doers, for they have acted under lawful authority. The case of Fox v. Hanbury (Cowp. 445), which was followed by Smith v Stokes (1 East, 363), Smith v. Oriell (1 East. 368), Harvey v. Crickett (5 M. and Selw. 336), and Woodbridge v. Swann (4 B. and Ad. 633) decided that, after an act of bankruptcy committed by one of two partners, the solvent partner is capable of disposing of the partnership property.’
Baron Parke dealt with the capacity of one tenant in common to maintain an action in conversion against his companions, and said that such an action was not maintainable unless there has been destruction of the particular chattel or something equivalent to its destruction.

Judges:

Pollock CB, Parke B

Citations:

(1853) 9 Exch 144, [1853] EngR 887, (1853) 9 Exch 145, (1853) 156 ER 62, (1853) 9 Exchequer 145

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Fox v Hanbury 1776
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission . .
Cited – Smith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Mentioned – Smith v Oriell 1801
. .

Cited by:

Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Cited – Regina v Bonner and Others CACD 24-Feb-1970
The appellants challenged their convictions for theft, saying that as partners in a firm they could not be convicted of theft of partnership property.
Held: The appeals were allowed for the unsatisfactory and unsafe nature of the convictions . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 05 December 2022; Ref: scu.566422

Calderdale and Huddersfield NHS Foundation Trust (Health (NHS)): ICO 5 Mar 2015

The complainant has requested information relating to an ‘Outline Business Case’ (OBC). The Commissioner’s decision is that Calderdale and Huddersfield NHS Foundation Trust has incorrectly applied section 22(1) of the FOIA in its response to the request. As the information has already been made public the Commissioner does not require the Trust to take any steps as a result of this decision notice.
FOI 22: Upheld

Citations:

[2015] UKICO FS50559736

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.555171

Oyston Estates Ltd, Regina (on The Application of) v Fylde Borough Council: CA 5 Jul 2019

How should one understand the statutory provisions – in section 61N of the Town and Country Planning Act 1990 – for proceedings to challenge the steps taken by a local planning authority in making a neighbourhood plan?

Judges:

Lord Justice Lewison, Lord Justice Lindblom, Lady Justice Rose

Citations:

[2019] EWCA Civ 1152

Links:

Bailii

Jurisdiction:

England and Wales

Planning

Updated: 05 December 2022; Ref: scu.639497

Newcastle Under Lyme Council (Local Government (County Council)) FS50570554: ICO 22 Apr 2015

The complainant has requested information from Newcastle under Lyme Borough Council (the council) relating to a specified business premises. The council has responded to the request, but outside the specified time frame. The Commissioner’s decision is that the council has failed to comply with section 10 of the FOIA as the response was not provided within 20 working days. As a response has now been provided, the Commissioner does not require the council to take any steps.
FOI 10: Upheld

Citations:

[2015] UKICO FS50570554

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.555339

Newcastle Under Lyme Council (Local Government (County Council)) FS50572884: ICO 22 Apr 2015

The complainant has requested information from Newcastle Under Lyme Borough Council (the council) relating to a specified business premises. The council has acknowledged the request, but not provided a substantive response. The Commissioner’s decision is that the council has failed to comply with section 10 of the FOIA as the response was not provided within 20 working days. The Commissioner requires the public authority to comply with the request or issue a valid refusal notice as set out in section 17 of the FOIA. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
FOI 10: Upheld

Citations:

[2015] UKICO FS50572884

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.555340

Triplerose Ltd v Patel: UTLC 16 Nov 2018

Landlord and Tenant – Forfeiture – Covenant v Alteration of Elevation of Building – whether prohibition applicable only to front elevation – original window replaced by door giving access to flat roof – whether a breach of covenant – s.184(4), Commonhold and Leasehold Reform Act 2002 – appeal allowed

Citations:

[2018] UKUT 374 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Triplerose Ltd v Beattie and Another UTLC 4-Jun-2020
Short term visitor sublets were breach of lease
Landlord and Tenant – Breach of Covenant – covenant against use of flat other than as a private dwelling house and prohibiting use for trade or business – whether breached by use of flat as serviced apartment advertised on internet booking sites – . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 05 December 2022; Ref: scu.631024

Sommer Antriebs-Und Funktechnik v Rademacher Gerate-Elektronik GmbH and Co. KG: ECJ 16 Jul 2015

ECJ Judgment – Reference for a preliminary ruling – Waste electrical and electronic equipment – Directive 2002/96/EC – Articles 2(1) and 3(a) and Annexes I A and I B – Directive 2012/19/EU – Articles 2(1)(a), 2(3)(b) and 3(1)(a) and (b), and Annexes I and II – Concepts of ‘electrical and electronic equipment’ and ‘electrical and electronic tools’ – Garage-door operating devices

Citations:

C-369/14, [2015] EUECJ C-369/14

Links:

Bailii

Statutes:

Directive 2002/96/EC 2(1) 3(a), Directive 2012/19/EU

Jurisdiction:

European

Environment

Updated: 05 December 2022; Ref: scu.550996

Brighton and Hove Council (Undertakings): ICO 18 Jan 2012

Brighton and Hove Council emailed the details of another member of staff’s annual salary – and the deductions made from this – to 2,821 council workers. A third party also informed the ICO of a historic breach which occurred in May 2009 when an unencrypted laptop was stolen from the home of a temporary employee.

Citations:

[2012] UKICO 2012-51

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.529042

WMS Gaming Inc (Patent): IPEC 10 Mar 2015

The invention relates to a system for integrating online communal wagering and social network functions to enhance social interaction. The contribution lies in providing a ‘chat console’ to enable users of different social networks who are involved in playing the communal game, to communicate directly. This is achieved by the wagering game server being operable to store information correlating participants in the communal wagering game and their respective social network servers.
The hearing officer found that the invention was excluded as a method of doing business implemented via a program for a computer as such and therefore refused the application.

Citations:

[2015] UKIntelP o10615

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 05 December 2022; Ref: scu.545466

West Mercia Police (Decision Notice): ICO 20 Sep 2011

The complainant requested information relating to a police investigation. Having had his first requests refused on the grounds of exceeding the cost threshold he then submitted 24 separate requests on the same day. The public authority aggregated the cost of compliance with these requests and again refused to disclose this information on the grounds that to do so would exceed the appropriate limit. The Commissioner’s decision is that the public authority correctly aggregated the costs and that compliance would exceed the appropriate limit. It is not required to comply with the request.
Section of Act/EIR and Finding: FOI 12 – Complaint Not upheld

Citations:

[2011] UKICO FS50396632

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.530920

CW v Parliament F-124/13: ECJ 26 Mar 2015

ECJ Judgment – Civil service – Officials – Action for annulment – Article 12a of the Staff Regulations – Internal Rules for the Advisory Committee on Harassment and its Prevention in the Workplace – Article 24 of the Staff Regulations – Request for assistance – Manifest errors of assessment – None – Role and powers of the Advisory Committee on Harassment and its Prevention in the Workplace – Option for an official to approach the Committee – Action for damages

Citations:

[2015] EUECJ F-124/13

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 05 December 2022; Ref: scu.545362

Petukhova v Russia: ECHR 2 May 2013

Citations:

28796/07 – Chamber Judgment, [2013] ECHR 400

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Legal Summary – Petukhova v Russia (Legal Summary) ECHR 2-May-2013
ECHR Article 5-1-b
Lawful order of a court
Detention in police station of person required by unlawfully issued court order to undergo psychiatric examination: violation
Facts – In January 2006 the . .
Lists of cited by and citing cases may be incomplete.

Police

Updated: 05 December 2022; Ref: scu.491938

Neij And Sunde Kolmisoppi v Sweden: ECHR 19 Feb 2013

ECHR Article 10-1
Freedom to impart information
Freedom to receive information
Conviction and order to pay damages for operating website allowing third parties to share files in breach of copyright: inadmissible
Facts – During 2005 and 2006 the two applicants were involved in different aspects of one of the world’s largest file sharing services on the Internet, the website ‘The Pirate Bay’ (TPB). The service provided by TPB made it possible for users to contact each other through torrent files and exchange digital material through file-sharing outside TPB’s computers. In 2008 they and others were charged with complicity to commit crimes in violation of the Copyright Act on the grounds that they had furthered the infringement by the website’s users of copyright in music, films and computer games. The applicants were convicted. On appeal the first applicant was sentenced to ten months’ imprisonment and the second applicant to eight months. They were also held jointly liable with the other defendants in damages of approximately EUR 3,300,000.
Law – Article 10: The applicants had put in place the means for others to impart and receive information within the meaning of Article 10. Their actions were afforded protection under that provision and, consequently, their convictions had interfered with their right to freedom of expression. Since they were convicted only in respect of material which was protected by copyright in accordance with the Copyright Act, the interference was ‘prescribed by law’. It had pursued the legitimate aims of protecting the rights of others and preventing crime..
As to whether the interference had been necessary in a democratic society, the Court was called upon to weigh the applicants’ interest in facilitating the sharing of the information against the interest in protecting the rights of the copyright-holders. As intellectual property, copyright was entitled to protection under Article 1 of Protocol No. 1 to the Convention. Accordingly, since it had to balance two competing interests which were both protected by the Convention, the respondent State had enjoyed a wide margin of appreciation. Indeed, that margin was particularly wide in the instant case as the type of material in respect of which the applicants were convicted was not entitled to the same level of protection as that afforded to political expression and debate. Further, since the Swedish authorities were under an obligation to protect the plaintiffs’ property rights in accordance with the Copyright Act and the Convention, there were weighty reasons for the restriction of the applicants’ freedom of expression. The Swedish courts had advanced relevant and sufficient reasons for finding that the applicants’ activities within the commercially run TPB amounted to criminal conduct. Lastly, the prison sentence and award of damages could not be regarded as disproportionate in view in particular of the applicants’ failure to take any action to remove the impugned torrent files, despite being urged to do so, and of their indifference to the fact that copyright-protected works had been the subject of file-sharing activities via TPB..
In conclusion, regard being had in particular to the nature of the information shared and the weighty reasons given, the interference with the applicants’ freedom of expression had been necessary in a democratic society.
Conclusion: inadmissible (manifestly ill-founded).

Citations:

40397/12 – Legal Summary, [2013] ECHR 394

Links:

Bailii

Statutes:

European Convention on Human Rights 10-1

Human Rights, Media, Intellectual Property, Information

Updated: 05 December 2022; Ref: scu.491923

Tymoshenko v Ukraine: ECHR 30 Apr 2013

Citations:

49872/11 – Chamber Judgment, [2013] ECHR 389

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Tymoshenko v Ukraine ECHR 31-May-2012
. .
See Also – Tymoshenko v Ukraine ECHR 3-Jul-2012
. .
Legal Summary – Tymoshenko v Ukraine (Legal Summary) ECHR 30-Apr-2013
ECHR Article 5-1
Lawful arrest or detention
Pre-trial detention for allegedly contemptuous behaviour to trial court: violation
Article 18
Restrictions for unauthorised purposes
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 05 December 2022; Ref: scu.491929

Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Another: Admn 2 May 2013

Challenges to compulsory purchase orders.
Held: The Orders stand

Judges:

Sycamore HHJ

Citations:

[2013] EWHC 973 (Admin)

Links:

Bailii

Statutes:

Acquisition of Land Act 1981

Jurisdiction:

England and Wales

Cited by:

Appeal from – Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Others CA 8-Oct-2013
Appeal against dismissal of claim for quashing of compulsory purchase order. . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 05 December 2022; Ref: scu.491916

Cruddas v Calvert and Others: QBD 1 May 2013

Application for leave to amend particulars of claim.

Judges:

Nicol J

Citations:

[2013] EWHC 1096 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Cruddas v Calvert and Others QBD 5-Jun-2013
. .
See Also – Cruddas v Calvert and Others CA 21-Jun-2013
The claimant sought damages alleging both defamation and malicious falsehood. The parties appealed against the ruling that in a malicious falsehood claim, the court would accept mutiple meanings of the words used. . .
See Also – Cruddas v Calvert and Others QBD 26-Jun-2013
. .
See Also – Cruddas v Calvert and Others QBD 31-Jul-2013
Judgment on the second stage of the trial of a claim for libel and malicious falsehood.
Held: Tugendhat J adopted the meaning ‘more likely than not to cause pecuniary damage’ for ‘calculated to’. . .
See Also – Calvert and Others v Cruddas CA 16-Apr-2014
Renewed application for leave to appeal against damages award in defamation and malicious falsehood. The defendant newspaper had published critical articles, derived from recordings made by undercover reporters, and pleaded justification.
Lists of cited by and citing cases may be incomplete.

Defamation, Torts – Other

Updated: 05 December 2022; Ref: scu.491919

Austrianu v Romania: ECHR 12 Feb 2013

ECHR Article 9-1
Manifest religion or belief
Confiscation of cassette player used by prisoner to listen to religious tapes: inadmissible
Facts – The applicant, who was of Baptist confession, was serving a lengthy prison sentence. After reacting to the confiscation of a small radio-cassette player he had received after obtaining good results on a ‘Christian moral education’ programme, he was informed by the prison authorities that prisoners were only entitled to have battery-operated radios and television sets, but that he could listen to his audio cassettes on the cassette player belonging to the prison’s cultural-educational department if he wished. In his application to the European Court, the applicant complained inter alia that the confiscation of his religious tapes and cassette player had infringed his freedom of religion.
Law – Article 9: This provision did not protect every act motivated or inspired by a religion or belief. Taking into account the State’s margin of appreciation, confiscation of the cassette (assuming it constituted interference with the applicant’s rights under Article 9) had not completely prevented the applicant from manifesting his religion. According to the Government the prison authorities had offered the applicant the use of a cassette player in the prison’s cultural-educational department to listen to his religious cassettes and, although the applicant had contested the existence of such a facility, he did not appear to have raised any complaint in that respect with the prison authorities. Moreover, he had been allowed to attend religious seminars, and it had never been contested that he could read religious books in his cell. Taking these considerations into account, the Court considered that restricting the list of things prisoners could have in their cells by excluding items (such as cassette players) which were not essential for manifesting religion was a proportionate response to the necessity to protect the rights and freedoms of others and to maintain security in prison.
Conclusion: inadmissible (manifestly ill-founded).
(See also Kovalkovs v. Latvia (dec.), no. 35021/05, 31 January 2012)
The Court also found a complaint of discrimination on religious grounds (Article 14 in conjunction with Article 9) manifestly ill-founded. It upheld the applicant’s complaints of violations of both the substantive and procedural limbs of Article 3 in respect of an incident in which he was hit with a truncheon on 9 December 1998, but found no violation of that provision in respect of an alleged lack of adequate medical treatment.

Citations:

16117/02 – Legal Summary, [2013] ECHR 396

Links:

Bailii

Statutes:

European Convention on Human Rights 9-1

Human Rights, Prisons

Updated: 05 December 2022; Ref: scu.491920

B v Romania (No 2): ECHR 19 Feb 2013

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of adequate legal protection in a case concerning a mother’s committal to a psychiatric institution and the placement of her children in care: violations
Facts – The applicant was assisted by the social services from 1996 onwards, having been classified as a disabled person unfit to work. In 2000 she was diagnosed with ‘paranoid schizophrenia’. Two of her children were minors at the time. No measure of guardianship or administration was ever introduced for the applicant or her children. Since 2000 she has been admitted on numerous occasions to psychiatric institutions, after being taken there by the police. Her children have not been living with her; instead they were placed in residential care for abandoned children.
Law – Article 8
(a) The applicant’s confinement – In most of the cases previously heard by the Court concerning ‘persons of unsound mind’, the domestic proceedings concerning psychiatric confinement had been examined under Article 5 of the Convention. Consequently, in order to determine whether the confinement in the present case had complied with Article 8 of the Convention, the Court found it appropriate to refer, mutatis mutandis, to its case-law under Article 5 ss 1 (e).
Despite the fact that the law on the protection of disabled persons imposed an obligation to introduce a legal protection measure, in the form of guardianship or administration, no such measure had been adopted in respect of the applicant, even though her state of health had been known to the authorities well before the beginning of her periods of confinement. Her vulnerability had also been noted and brought to the attention of the domestic courts by numerous reports of the social services. But neither the social services nor the courts had drawn any conclusions as regards the legal protection of the applicant herself. It was precisely the shortcomings of the authorities which had contributed to depriving her of the guarantees available under mental-health legislation, in particular the right for the patient to be assisted when giving consent or the obligation to notify the patient’s legal representative of the measure of confinement and the reasons for its adoption. Recent amendments to mental-health legislation provided that if the patient had no legal representative and was unable to appoint one on account of mental incapacity, the hospital would be required to notify the relevant local authority promptly so that legal protection measures could be put in place. However, those new provisions had not benefited the applicant. The provisions of domestic law governing psychiatric confinement and the protection of persons unable to look after their own interests had not been applied to the applicant in the spirit of her right to respect for her private life under Article 8. The authorities had thus failed in their obligation to take appropriate measures for the defence of the applicant’s interests.
Conclusion: violation (unanimously).
(b) Placement of the applicant’s children in care – It was because of the lack of special protection for the applicant, who, in particular, was not assigned a lawyer during the placement proceedings or any guardian ad litem, that she had not been able to participate effectively in the proceedings concerning the placement of her children or to have her interests defended. In addition, her family situation had been examined on only two occasions in a period of twelve years. Lastly, there was no evidence that the social workers had maintained the regular contact with the applicant that would have afforded a good opportunity to make her views known to the authorities. For those reasons, the decision-making process leading to the placement of the applicant’s two minor children had not been conducted in compliance with her rights as guaranteed by Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

Citations:

1285/03 – Legal Summary, [2013] ECHR 393

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Human Rights, Children, Health

Updated: 05 December 2022; Ref: scu.491921

Garcia Mateos v Spain: ECHR 19 Feb 2013

ECHR Article 14
Discrimination
Failure to enforce a judgment acknowledging gender discrimination against a working mother: violation
Facts – In February 2003, relying on the labour regulations, the applicant asked her employer for a reduction in her working hours as she had custody of her son, who was under the six-year age-limit. When her employer refused, she brought proceedings before the Employment Tribunal, but her complaint was dismissed. In a judgment of 2007 the Constitutional Court upheld the applicant’s amparo complaint. It found that the principle of non-discrimination on grounds of sex had been breached in respect of the applicant, as her employer had prevented her from reconciling her professional life with her family life. It remitted the case to the Employment Tribunal for a new judgment. In 2007 the Tribunal dismissed the applicant’s case and she lodged a fresh amparo appeal. In 2009 the Constitutional Court found that its 2007 judgment had not been properly enforced and declared null and void the Employment Tribunal’s judgment. It decided, however, that it would not be appropriate to remit the case to the Employment Tribunal for a further decision, as in the meantime the applicant’s son had reached the age of six. It further ruled that it could not award compensation in lieu as this was not permitted by the Institutional Law on the Constitutional Court.
Law – Article 14 in conjunction with Article 6 ss 1: The State was required to enable applicants to obtain due enforcement of decisions given by the national courts. The Constitutional Court had found, in its 2009 decision, that the applicant’s right to the enforcement of its first judgment, acknowledging a violation of the non-discrimination principle, had been breached. A decision or measure in an applicant’s favour did not deprive him or her of ‘victim’ status unless the authorities had recognised, expressly or in substance, and then remedied the violation of the Convention. The violation found by the Constitutional Court had not to date been remedied in spite of two judgments by that court.
The applicant’s initial intention had not been to obtain compensation but to seek recognition of her right to reduced working hours so that she could look after her son when he was still under six. She subsequently submitted a compensation claim only because she no longer qualified for the reduction in working hours, as her child had passed the age-limit. The Constitutional Court, having refused her compensation in its decision of 2009, did not give her any indication about the possibility of taking her claim to any other administrative or judicial body. It was true that because of the child’s age at the end of the proceedings it was no longer possible to grant alternative redress for the acknowledged breach of the applicant’s right. Nor could the Court could indicate to the respondent State how redress in the context of amparo complaints should be provided. It simply observed that the protection provided by the Constitutional Court had proved ineffective. Moreover, the applicant’s claim before the Employment Tribunal regarding the refusal to grant her a reduction in working hours had not been settled on the merits, even though the two unfavourable judgments of the Employment Tribunal had been declared null and void. In addition, her amparo appeal had proved meaningless, as the Constitutional Court had considered that the law did not provide for compensation as a means of redress for a breach of a fundamental right. Accordingly, the failure to restore to the applicant her full rights had rendered illusory the protection provided through the upholding of an amparo complaint by the Constitutional Court.
Conclusion: violation (unanimously).
Article 41: EUR 16,000 in respect of non-pecuniary damage.
Discrimination (Article 8)

Citations:

38285/09 – Legal Summary, [2013] ECHR 395

Links:

Bailii

Statutes:

European Convention on Human Rights 6-1 14

Human Rights, Discrimination, Employment

Updated: 05 December 2022; Ref: scu.491922

Collins v Secretary of State for Business Innovation and Skills: QBD 2 May 2013

The claimant was seriously ill and claimed that this arose from exposure to asbestos fibres working for the defendant many years before. He now sought an extension of time to make the claim.
Held: The court upheld the limitation defences of both defendants and dismissed the action:
i) The claimant did not have actual knowledge of the possible link between his lung cancer and his previous exposure to asbestos until July 2009 when he saw the advertisement. Therefore he commenced proceedings within the requisite three year period after the date of actual knowledge.
ii) The claimant had constructive knowledge under LA section 14 (3) of the possible link in mid-2003. This is because, as a reasonable man, he should by then have asked Dr Prejbisz about the possible causes of his cancer. If the claimant had done so, Dr Prejbisz would have mentioned asbestos exposure as a possible cause.
iii) Therefore under LA section 11 the limitation period expired in mid-2006. The claimant commenced his actions six years after expiry of the limitation period.
iv) Upon application of the criteria set out in LA section 33, it did not appear equitable to disapply the provisions of section 11. Therefore the defendants’ limitation defences succeeded.

Judges:

Nicol J

Citations:

[2013] EWHC 1117 (QB)

Links:

Bailii

Statutes:

Limitation Act 1980 33

Cited by:

Appeal from – Collins v Secretary of State for Business Innovation and Skills and Others CA 23-May-2014
The claimant appealed against rejection of his claim for personal injury which had been rejected on basis that it was out of time. He had contracted cancer in 2002, but had recovered. He later came to attribute this to exposure to asbestos at work . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 05 December 2022; Ref: scu.491918

Vellore, Regina (on The Application of) v Secretary of State for The Home Department: Admn 8 Mar 2013

The claimant sought permission to review a decision of the defendant refusing to reconsider a decision to grant the claimant three years leave to remain and refusing to grant indefinite leave to remain. He seeks an order quashing that decision and a declaration that any reasonable exercise of the decision would have led to the grant of indefinite leave to remain.

Judges:

Jarman QC HHJ

Citations:

[2013] EWHC 724 (Admin)

Links:

Bailii

Immigration

Updated: 05 December 2022; Ref: scu.491910