Prison officers may not, in the course of an employment dispute, refuse to accept prisoners into the prison after they had been properly committed to the care of the prison in which they worked.
Independent 23-Nov-1994
Updated: 08 April 2022; Ref: scu.81457
Judgment – Freedom of Establishment – Reference for a preliminary ruling – Public procurement – Directive 2004/18/EC – Tendering procedure for public contracts for farm advisory services – Whether or not there is a public contract – Scheme for obtaining services open to any economic operator who satisfies previously established conditions – Scheme not subsequently open to other economic operators
ECLI:EU:C:2018:142, [2018] EUECJ C-9/17
European
Updated: 06 April 2022; Ref: scu.606031
Application for judicial review of a decision by the defendant refusing the claimant’s application to be registered as a British citizen
Charles Bourne QC
[2018] EWHC 399 (Admin)
England and Wales
Updated: 05 April 2022; Ref: scu.605886
The claimant party challenged the removal by the defendant of elements of their description on their registration as a political party.
Supperstone J
[2018] EWHC 251 (Admin), [2018] WLR(D) 107
Political Parties, Elections and Referendums Act 2000
England and Wales
Updated: 05 April 2022; Ref: scu.605602
[2017] EWHC 3144 (QB)
England and Wales
Updated: 02 April 2022; Ref: scu.602143
[2017] EWHC 2383 (Admin)
England and Wales
Updated: 01 April 2022; Ref: scu.598381
Coulson J
[2017] EWHC 1824 (TCC)
Public Contracts Regulations 2015
England and Wales
Updated: 29 March 2022; Ref: scu.593118
The applicant had been convicted and imprisoned following a trial in which he had defended himself, and in which the judge had attacked his honesty before the jury, and his honesty was an issue in the charge. The conviction had been set aside, and he sought compensation the Secretary of State who had refused this on the grounds that the circumstances were not exceptional.
Held: The Secretary of State’s decision was irrational. The complaint went to behaviour of the judge, and was justified. The Secretary of State’s decision was outside the range of reasonable responses, and he should have granted the application.
Times 05-Dec-2000, Gazette 11-Jan-2001
England and Wales
Updated: 29 March 2022; Ref: scu.88655
Failure by a Member State to fulfil its obligations – Admissibility – Legal interest in bringing proceedings – Directive 92/50/EEC – Procedures for the award of public service contracts – Negotiated procedure without prior publication of a contract notice – Conditions
[2009] EUECJ C-480/06
European
Opinion – Commission v Germany – C-480/06 ECJ 19-Feb-2009
ECJ (Law Relating To Undertakings) – Opinion – Public service contracts Scope of Directive 92/50/EEC Procedure for the award of public service contracts Technical reasons . .
Cited – Brent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 March 2022; Ref: scu.592012
Application for judicial review of the decision to make a scheme under section 1 of the Superannuation Act 1972, which amended the Civil Service Compensation Scheme to reduce the value of certain benefits paid to civil servants on redundancy or taking early retirement or other forms of exit from the civil service
Sales LJ, Whipple J
[2017] EWHC 1787 (Admin), [2017] WLR(D) 480
England and Wales
Updated: 28 March 2022; Ref: scu.591231
Application for judicial review concerns a rare claim for salvage in respect of wreck (jetsam, flotsam, lagan and derelict).
Teare J
[2017] EWHC 1722 (Admin)
England and Wales
Updated: 27 March 2022; Ref: scu.590301
(Citizenship of The Union – Freedom To Move and Reside In The Member States : Judgment) Reference for a preliminary ruling – Citizenship of the Union – Article 21 TFEU – Freedom to move and reside in the Member States – Individual having the nationality of both the Member State in which he resides and the Member State in which he was born – Change of surname in the Member State of birth not carried out during a period of habitual residence – Name corresponding to birth name – Application for the entry of that name in the civil register of the Member State of residence – Rejection of that application – Reason – Name not acquired during a period of habitual residence – Existence of other procedures in national law to have that name recognised
C-541/15, [2017] EUECJ C-541/15
European
Updated: 27 March 2022; Ref: scu.588271
ECJ (Judgment) Appeal – Actions for annulment – EAGGF, EAGF and EAFRD – Expenditure excluded from European Union funding – Expenditure by the Kingdom of Spain
ECLI:EU:C:2017:461, [2017] EUECJ C-279/16
European
Updated: 27 March 2022; Ref: scu.588300
Deprivation of citizenship (redacted)
Laing DBE J
[2017] EWHC 928 (Admin)
England and Wales
Updated: 24 March 2022; Ref: scu.582153
ECJ (Public Health Public Health – Order) Interim measures – European Chemicals Agency – REACH – Fee payable for the registration of a substance – Discount granted to micro, small and medium enterprises – Decision imposing an administrative fee and additional fee – Application for stay of execution – Failure emergency
ECLI:EU:T:2017:156, [2017] EUECJ T-625/16 – CO
European
Updated: 23 March 2022; Ref: scu.580718
ECJ (Judgment) Appeal – Regulation (EC) No 1907/2006 (REACH Regulation) – Article 57(f) – Authorisation – Substances of very high concern – Identification – Equivalent level of concern – Cyclohexane-1,2-dicarboxylic anhydride, cis-cyclohexane-1,2-dicarboxylic anhydride and trans-cyclohexane-1,2-dicarboxylic anhydride
ECLI:EU:C:2017:207, [2017] EUECJ C-323/15
European
Updated: 23 March 2022; Ref: scu.580717
There is no facility to appeal against an interim decision or determination of the Pensions Ombudsman, on a point of law, to the High Court. The appeal is purely statutory, and since no express capacity for such an appeal is provided, none exists.
The Honourable Mr Justice Lightman
Times 07-Dec-1999, Gazette 01-Dec-1999, [1999] EWHC Ch 196, [2000] 1 WLR 1524
Pension Schemes Act 1993, Personal and Occupational Pensions Schemes (Pensions Ombudsman) (Procedure) Rules 1995 (1995 No 1053)
England and Wales
Cited – British Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 March 2022; Ref: scu.83019
ECJ (Order) Application for interim measures – Member of the European Parliament – Recovery of compensation for reimbursement of parliamentary assistance costs – Application for suspension of operation – Lack of urgency
ECLI:EU:T:2017:92, [2017] EUECJ T-626/16 – CO
European
Updated: 09 February 2022; Ref: scu.579664
ECJ (Order) Application for interim measures – Member of the European Parliament – Recovery of compensation for reimbursement of parliamentary assistance costs – Application for suspension of operation – Lack of urgency
ECLI:EU:T:2017:94, [2017] EUECJ T-624/16 – CO
European
Updated: 09 February 2022; Ref: scu.579654
The court discussed the scope of the disciplinary process undertaken by the respondent: ‘The fact that the process is investigative and inquisitorial rather than a form of litigation between the parties . . does not mean that the medical service committee or the authority is entitled to investigate and make findings on matters not the subject of complaint.’
Auld LJ
[1995] 1 WLR 961
England and Wales
See Also – Regina v General Medical Council ex parte Dr K S Trivedi CA 3-Mar-1996
. .
See Also – Trivedi, Regina (on the Application Of) v General Medical Council CA 14-Nov-1996
. .
See Also – Trivedi v the General Medical Council PC 18-Nov-1996
(Professional Conduct Committee of the GMC) . .
See Also – Regina v Secretary of State for Health and Family Health Service Appeal Unit ex parte Trivedi CA 13-Dec-1996
. .
See Also – Regina v South Humberside Health Authority ex parte Trivedi Admn 17-Apr-1997
. .
Cited – Nicholas Cavanagh Raymond Bhatt Frank Redmond v The Health Service Commissioner CA 15-Dec-2005
A parent had complained about the closure of a hospital unit which led to his daughter not receiving treatment. The Commissioner in her report commented adversely on the doctors involved. Both doctors and the parent sought judicial review of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 February 2022; Ref: scu.237701
When making a decision which would interfere with the human rights of an individual, and even where the risks from which protections was sought, could be seen as small, it was the duty of the decision maker to justify the interference. The individual was not to be called upon to prove the risk. Here the respondent was holding a major public inquiry into the events of Bloody Sunday. Parties wanted soldiers involved in the incident to appear in person. The soldiers asserted that they were at personal risk if they attended. The respondent ordered them to attend. It was held that the order requiring them to attend was to be set aside. The Osman test did not apply. The risk was not fanciful, and the decision that they could be adequately protected by the Security Services was a procedural unfairness.
Lord Justice Rose and Mr Justice Sullivan
Times 23-Nov-2001, Gazette 14-Dec-2001
England and Wales
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 – Regina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .
See Also – A and Others, Regina (on the Application of) v Lord Saville of Newdigate and others CA 28-Jul-1999
Former soldiers who had been involved in the events in Londonderry in 1972, and were to be called to give evidence before a tribunal of inquiry, still had cause to fear from their names being given, and so were entitled to anonymity when giving such . .
Appeal from – Regina (A and others) (Widgery Soldiers) v Lord Saville of Newdigate and Others CA 19-Dec-2001
The court would apply common sense in deciding whether soldier witnesses should be obliged to attend in person at an enquiry in Londonderry, where they claimed their lives would be at risk. It was not appropriate to seek to define what would be . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 January 2022; Ref: scu.166860
(Judgment) Development cooperation – Annual Action Programme in favour of Myanmar/Burma to be financed from the general budget of the European Union – Budget implementing decision – Modification – Action for annulment – Challengeable act – Admissibility – Obligation to state reasons – Principle of sound financial management – Principle of good administration – Transparency – Remedy – Legitimate expectations
ECLI:EU:T:2017:56, [2017] EUECJ T-29/15
European
Updated: 29 January 2022; Ref: scu.573896
ECJ (Judgment : Second Chamber) Appeal – Access to documents of the institutions of the European Union – Regulation (EC) No 1049/2001 – Third indent of Article 4(2) – Environmental information – Aarhus Convention – Article 4(1) and (4) – Exception to right of access – Protection of the purpose of investigations – Studies carried out by an undertaking, at the request of the European Commission, concerning the transposition of directives on the environment – Partial refusal of access
C-612/13, [2015] EUECJ C-612/13
European
Updated: 29 January 2022; Ref: scu.573766
ECJ Appeals – Order for interim measures – Public service contracts – Procurement procedure concerning the supply of insurance services for property and persons – Rejection of the bid made by a tenderer and decision to award the contract to another tenderer – Application for suspension of operation – Particularly serious prima facie case – Urgency – Serious harm – No irreparable harm – Right to an effective remedy – Directive 89/665/EEC – Article 47 of the Charter of Fundamental Rights of the European Union – Standstill period before conclusion of the contract – Access to information permitting assessment of the lawfulness of the award decision
ECLI:EU:C:2015:275, [2015] EUECJ C-35/15 – P
European
Updated: 29 January 2022; Ref: scu.573765
(Judgment) Appeal – Access to documents of the institutions – Regulation (EC) No 1049/2001 – Article 3 – Notion of document – Article 2(3) – Documents held by an institution – Characterisation of information contained in a database – Obligation to create a document which does not already exist – None – Existing documents capable of being extracted from a database
ECLI:EU:C:2017:5, [2017] EUECJ C-491/15
European
Updated: 28 January 2022; Ref: scu.573262
ECJ (Judgment) Public works contracts – Tender procedure – Extension and refurbishment of the Konrad Adenauer building in Luxembourg – Annulment of the invitation to tender procedure – Obligation to state reasons – Value of the contract – Manifest error of assessment
ECLI:EU:T:2017:8, [2017] EUECJ T-419/15
European
Updated: 28 January 2022; Ref: scu.573244
Foreign and security policy – Common commercial policy – Embargo on the Republics of Serbia and Montenegro – Regulation (EEC) No 1432/92 – Carriage of persons
[2005] EUECJ C-371/03
European
Updated: 28 January 2022; Ref: scu.573211
ECJ Judgment – Area of freedom, security and justice – Regulation (EC) No 2252/2004 – Document 9303 of the International Civil Aviation Organisation (ICAO), Part 1 – Minimum security standards for passports and travel documents issued by the Member States – Machine readable passport – Inclusion of the birth name on the personal data page of the passport – Name to appear in a form not liable to give rise to confusion
ECLI:EU:C:2014:2249, [2014] EUECJ C-101/13
Bailii
Regulation (EC) No 2252/2004
England and Wales
Citing:
Opinion – U v Stadt Karlsruhe ECJ 30-Apr-2014
ECJ (Advocate General’s Opinion) Passports – Regulation (EC) No 2252/2004 – Minimum standards for the security of passports and travel documents issued by Member States – Legal effect of reference to document No . .
Lists of cited by and citing cases may be incomplete.
Administrative
Updated: 27 January 2022; Ref: scu.572694
ECJ Judgment – Reference for a preliminary ruling – Public procurement – Directive 89/665 / EEC – Recourse procedures for the award of public contracts – Article 1 (3) – Interest in bringing proceedings – Article 2a (2) – Concept of ‘tenderer concerned’ Of a tenderer definitively excluded by the contracting authority from bringing an action against the subsequent decision to award the contract
C-355/15, [2016] EUECJ C-355/15
Bailii
European
Commercial, Administrative
Updated: 27 January 2022; Ref: scu.572566
EU (Judgment) Reference for a preliminary ruling – Public service contracts – Award of the contract without initiating a tendering procedure – So-called ‘in-house’ award – Conditions – Similar control – Performance of the essential activity – Successful public capital tendering company owned by several local authorities – Activity also carried out for the benefit of local authorities which are not shareholders – Activity imposed by a public authority which is not a shareholder
C-553/15, [2016] EUECJ C-553/15
Bailii
European
Administrative, Commercial
Updated: 27 January 2022; Ref: scu.572326
ECJ (Judgment) Reference for a preliminary ruling – Directive 2004/18/EC – Article 45 – Articles 49 and 56 TFEU – Public procurement – Conditions for exclusion from a procedure for the award of public works contracts, public supply contracts and public service contracts – Obligations relating to the payment of social security contributions – Social security contributions payment certificate – Correction of irregularities
ECLI:EU:C:2016:853, [2016] EUECJ C-199/15
Bailii
Directive 2004/18/EC 45, TFEU 49 56
European
Administrative, Contract
Updated: 25 January 2022; Ref: scu.571265
The claimant solicitor alleged that the repeated and failed prosecutions of him and the obtaining of search warrants had been an improper attempt to stop him practising.
Phillips J
[2016] EWHC 2884 (QB)
Bailii
Limitation Act 1980 32
England and Wales
Administrative, Limitation, Torts – Other
Updated: 25 January 2022; Ref: scu.571115
The claimant sought to quash a report on the claimant school issued by the respondent. The respondent now sought the removal of an interim order restraining publication.
Held: THE ORDER WAS UPHELD.
Stuart-Smith J
[2016] EWHC 2004 (Admin)
Bailii
England and Wales
Cited by:
See Also – The Interim Executive Board of X School v Chief Inspector of Education, Childrens Services and Skills Admn 8-Nov-2016
The School sought judicial review of a decision of the Inspector that their school policy of separating girls and boys within the school was discriminatory. . .
See Also – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.
Education, Administrative
Updated: 24 January 2022; Ref: scu.570258
The claimant appealed against rejection of her complaint about a judge’s handling of her case.
Macur, Sales LJJ
[2016] EWCA Civ 951
Bailii
England and Wales
Administrative, Legal Professions
Updated: 24 January 2022; Ref: scu.570107
The court has jurisdiction to grant a civil law remedy by way of injunction in order to enforce the public law, except in cases where statute had expressly or by necessary implication removed the jurisdiction. Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.
Lord Denning MR
[1971] 1 WLR 1614
England and Wales
Cited by:
Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Cited – City of London Corporation v Bovis Construction Ltd CA 18-Apr-1988
An injunction had been granted to restrain Bovis from causing a noise nuisance outside certain hours specified in a notice served by the council under the 1974 Act which created a criminal offence ‘without reasonable excuse’ to contravene the . .
Cited – Birmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Administrative
Updated: 22 January 2022; Ref: scu.182498
Claim of unlawful delay in grant of refugee status
Richards J
[2003] EWHC 319 (Admin)
Bailii
Administrative, Immigration, Human Rights
Updated: 19 January 2022; Ref: scu.566792
The Court was asked about the powers of the Complaints Commissioner under the 1996 Order, and in particular about his powers in relation to general medical practitioners working in the National Health Service and whether, and if so in what circumstances, the Complaints Commissioner has power to recommend the payment of a money sum to a complainant; and whether in the event that that sum is not paid he has power to make a special report drawing the attention of the legislature to that fact. The commissioner appealed from a decision that he did not have those powers.
Held: The appeal failed. Under article 9(3) of the 1996 Order, he may not carry out an investigation into any actions in respect of which the complainant has a remedy by way of proceedings in a court of law. This is, subject to article 9(4), a condition precedent to his jurisdiction.
Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson
[2016] UKSC 22, UKSC 2014/0094
Bailii, Bailii Summary, SC, SC Summary
The Parliamentary Commissioner Act (Northern Ireland) 1969, Commissioner for Complaints Act (Northern Ireland) 1969
Northern Ireland
Citing:
At CANI – JR55 v Northern Ireland Commissioner for Complaints CANI 28-Jan-2014
The GP challenges the power of the Commissioner to recommend the payment of the consolatory payment and he challenges the threatened exercise by the Commissioner of an asserted power to make a special report in relation to the matter to the Northern . .
Cited – Regina v Commissioner for Local Administration ex parte Croydon London Borough Council QBD 1989
Delay in application.
Held: The commissioner’s powers cannot depend upon whether the complaint is well founded. He could only act where a complainant did not otherwise have an action at law for a remedy.
As long as no prejudice is . .
Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 7-Feb-2008
Complaint was made as to a leaflet PEC 3 issued by the Department in 1996, intended to summarise the changes introduced by the Pensions Act 1995, and their purpose. One answer given was: ‘The Government wanted to remove any worries people had about . .
Lists of cited by and citing cases may be incomplete.
Administrative, Health Professions
Updated: 14 January 2022; Ref: scu.563293
This case arises from a dispute about the lack of toilet and washing facilities at two fast food outlets in Hull. The City Council, the claimant (‘Hull’), is not happy about that. It believes the commercial operator of the outlets (the second interested party (‘Greggs’) should provide those sanitary facilities and that Hull is being wrongly prevented from exercising its power to require Greggs to provide them on pain of criminal proceedings.
Kerr J
[2016] EWHC 1064 (Admin)
Bailii
Regulatory Enforcement and Sanctions Act 2008
Consumer, Administrative
Updated: 14 January 2022; Ref: scu.563272
The court granted judicial review of a decision to prevent the applicant taking notes from the public gallery of the court. The general rule of openness must apply, and though particular exceptional circumstances might allow the making of such an order, no such circumstances applied in this case
Burnett LJ, Sweeney J
[2016] EWHC 183 (Admin), [2016] WLR(D) 62
Bailii, WLRD
England and Wales
Citing:
Leave – Kirk, Regina (on The Application of) v Cardiff Crown Court and Others Admn 21-Jan-2015
Leave to bring judicial review was granted of a decision by a judge to ban a member of the public taking notes of open court proceedings in contravention of a direct order from the judge. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Contempt of Court, Administrative
Updated: 10 January 2022; Ref: scu.559673
(Judgment) Reference for a preliminary ruling – Directive 89/665/EEC – Public procurement – National legislation – Fees for access to administrative proceedings in the field of public procurement – Right to an effective remedy – Dissuasive fees – Judicial review of administrative decisions – Principles of effectiveness and equivalence – Effectiveness
ECLI:EU:C:2015:655, [2015] EUECJ C-61/14
Bailii
European
Administrative
Updated: 04 January 2022; Ref: scu.553101
Application by Geraldine Finucane for judicial review of the decision of the then Secretary of State for Northern Ireland to hold ‘a review into the death of Patrick Finucane (her husband) rather than a public inquiry of the kind recommended by Judge Peter Cory.’ The applicant challenged both (a) the decision of the SOSNI not to hold a public inquiry of that kind into his death and also (b) the decision to establish an independent review of the circumstances of his death.
[2015] NIQB 57
Bailii
Northern Ireland
Coroners, Administrative
Updated: 01 January 2022; Ref: scu.549492
These linked appeals concern the lawfulness of a Home Office guidance document, ‘Requests for removal decisions’, as it applied prior to its withdrawal on 13 April 2015
[2015] EWCA Civ 514, [2015] INLR 633, [2015] Imm AR 1216
Bailii
England and Wales
Administrative, Immigration
Updated: 30 December 2021; Ref: scu.547013
Coulson J
[2015] EWHC 876 (TCC), [2015] PTSR 1470
Bailii
Public Contracts Regulations 2006
England and Wales
Administrative
Updated: 29 December 2021; Ref: scu.545606
[2015] EWHC 822 (Admin)
Bailii
England and Wales
Administrative
Updated: 29 December 2021; Ref: scu.545011
The claimant sought damages in negligence and breach of statutory duty, saying that a failure by the defendants to maintain the correctness of its registers led to losses causing the insolvency of his company. The defendant had filed a note of a winding up order against the wrong (but similarly named) company.
Held: ‘the Registrar owes a duty of care when entering a winding up order on the Register to take reasonable care to ensure that the Order is not registered against the wrong company. That duty is owed to any Company which is not in liquidation but which is wrongly recorded on the Register as having been wound up by order of the court. The duty extends to taking reasonable care to enter the Order on the record of the Company named in the Order, and not any other company. It does not extend to checking information supplied by third parties. It extends only to entering that information accurately on the Register.’
Edis J
[2015] EWHC 115 (QB), [2016] 1 WLR 2499, [2015] 4 All ER 681, [2015] BCC 236, [2015] 1 BCLC 670
Bailii
Companies Act 2006 108
England and Wales
Administrative, Negligence
Updated: 27 December 2021; Ref: scu.541767
The claimant association challenged the proposed sale of probation services into private sector companies.
Irwin J
[2014] EWHC 4349 (Admin)
Bailii
England and Wales
Administrative
Updated: 27 December 2021; Ref: scu.541605
ECJ State aid – Operation of Video Lottery Terminals – Grant by the Hellenic Republic of an exclusive licence – Decision finding no State aid – Failure to initiate the formal investigation procedure – Serious difficulties – Procedural rights of the interested parties – Obligation to state reasons – Right to effective judicial protection – Advantage – Joint assessment of the notified measures
T-58/13, [2015] EUECJ T-58/13
Bailii
European
Litigation Practice, Administrative
Updated: 24 December 2021; Ref: scu.540503
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; adequate information on which to respond; adequate time in which to respond and conscientious consideration by an authority of the response to consultation. Applying the test in R v Gwent ex p Bryant: ‘It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. ‘ and ‘Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely.’
Glidewell LJ
Times 28-May-1993, [1994] IRLR 72
Citing:
Adopted – Regina v Gwent County Council ex parte Bryant 1988
The court described what was meant by consultation: ‘Fair consultation means: (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; (d) conscientious . .
Cited by:
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – Cambridge Housing Society v Anwar EAT 9-Mar-2007
EAT Unfair Dismissal – Reason for dismissal including substantial other reason / Reasonableness for dismissal
4 grounds of appeal challenging reasonableness of Employment Tribunal decision allowing a claim . .
Cited – Mccaffrey v Fold Housing Association NIIT 27-Nov-2007
. .
Cited – English v Coastal Container Line Ltd NIIT 17-Dec-2008
. .
Cited – Hanover (Scotland) Housing Association Limited v John Reid Margaret Reid OHCS 6-Apr-2006
. .
Cited – Polyglobe Group Ltd v Vadher, Hassen EAT 21-Apr-2005
EAT Practice and Procedure – Bias, misconduct and procedural irregularity. The Employment Tribunal made an important factual finding as to the process by which the employees were dismissed, the finding being on a . .
Cited – Cranwick Country Food Plc v GMB Trade Union EAT 6-Sep-2005
EAT Tribunal correct that consultation about the correspondence of factory closure should have taken place immediately after closure plans announced before contracts exchanged on a new site. Securicor and Susie . .
Cited – M Mofunanya v Richmond Fellowship A Hanley EAT 23-Dec-2003
EAT Redundancy – Definition
EAT Redundancy – Definition . .
Cited – Caves v Board of Governors of Campbell College NIIT 23-Apr-2004
. .
Cited – Transport and General Workers Union v Manchester Airport Plc EAT 4-Aug-2004
EAT Redundancy – Collective consultation and information . .
Cited – Amicus v Nissan Motor Manufacturing (UK) Ltd EAT 26-Jul-2005
EAT Employers failed to consult with company council rather than union – did not consult with union until later stage 3 weeks before employees had to indicate willingness to be relocated but 4.5 months before . .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Cited – Oakley v Merseyside Magistrates Court Committee EAT 2-Mar-2003
EAT Redundancy – Collective Consultation and Information . .
Cited – Alstom Traction Ltd v Birkenhead and others EAT 10-Oct-2002
. .
Cited – Colvin v Attol Business Systems Ltd EAT 29-Nov-2002
EAT Unfair Dismissal – Other . .
Cited – Hailwood v Best Power Technology Ltd EAT 29-Sep-1999
EAT Redundancy – Fairness . .
Cited – Scotch Premier Meat Ltd v Stuart Burns and others EAT 28-Apr-2000
EAT Redundancy – Definition . .
Cited – Middlesbrough Borough Council v TGWU Unison EAT 4-May-2001
The council sought to make redundancies because of its financial circumstances following re-organisation. The employees said the consultation procedure had been a sham.
Held: Fair consultation involves giving the body consulted a fair and . .
Cited – Godrich and Serwotka v Public and Commercial Services Union and Reamsbottom ChD 31-Jul-2002
The second defendant had become General Secretary of the first defendant after the amalgamation of two unions. The defendants agreed a compromise as to his term of office. The applicants sought declarations that they were now joint secretary.
Cited – Hailwood v Best Power Technology Ltd EAT 29-Sep-2000
. .
Cited – O’Kane and Another v Grayston White and Sparrow Ltd EAT 6-Dec-1994
. .
Cited – Rowell v Hubbard Group Services Ltd EAT 12-Jan-1995
. .
Cited – British Flowplant Group Ltd and others EAT 9-May-1995
. .
Cited – Ormsby v the West of England Shipowners Insurance EAT 8-Nov-1995
. .
Cited – Reeve v Agricultural and Food Research Council EAT 9-Feb-1996
. .
Cited – Armishaw v London Docklands Development Corporation EAT 16-Jan-1996
. .
Cited – Isaac v Badgerline Ltd EAT 16-May-1996
. .
Cited – British Flowplant Group Ltd v Law and others EAT 12-Mar-1997
. .
Cited – British Flowplant Group Ltd v Law and others EAT 16-Dec-1997
. .
Cited – Tabani v United Bank Ltd EAT 21-Jun-1999
. .
Cited – Lloyd v Taylor Woodrow Construction EAT 1-Jul-1999
A defect of the consultation procedure in a redundancy which could make a dismissal unfair, was capable in some circumstances of being corrected by the company in its appeal procedure. The appellant had not originally been informed of the criteria . .
Cited – Cable Realisations Ltd v GMB Northern EAT 29-Oct-2009
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the . .
Lists of cited by and citing cases may be incomplete.
Judicial Review, Administrative
Updated: 30 November 2021; Ref: scu.86211
Richards LJ
[2014] EWCA Civ 151, [2014] 3 All ER 437, [2015] 1 WLR 125
Bailii
England and Wales
Administrative, Litigation Practice
Updated: 30 November 2021; Ref: scu.521492
Haddon-Cave J
[2013] EWHC 582 (Admin)
Bailii
Administrative, Immigration
Updated: 17 November 2021; Ref: scu.513523
The charity appealed against refusal to allow it to reclaim input VAT. It also sought judicial review of the decision of the Tribunal not to allow it to raise an argument of legitimate expectation. The charity had various subsidiaries conducting commercial activities, which paid VAT in its supplies. The parties disputed how input taxes were attributed between the different activitie, particularly in the context of unrestricted fundraising expenditure.
Held: The Tribunal had had power to listen to the argument on legitimate expectation. In 2000, the revenue had written to the claimant setting out the agreed calculation methods, but the law had altered on the Church of England case. However ‘in a case such as this, involving an assurance given to only one person and where there is no irrationality on the part of the public authority in adopting a different approach, the absence of detrimental reliance on the part of the person to whom the assurance is given is fatal to the argument that to modify the assurance would involve an abuse of power on the part of the public authority which gave the assurance.’
Sales J
[2009] EWHC 3078 (Ch), Times 31-Dec-2009
Bailii
Value Added Tax Act 1994 24(5), Sixth Council Directive 77/388/EEC 17
England and Wales
Citing:
Appeal from – Oxfam v Revenue and Customs VDT 30-Jul-2008
VDT VAT – INPUT TAX – Charity applying method apportioning VAT to business purposes – Church of England Children’s Society decision permitted the Appellant to recover part of VAT incurred on unrestricted . .
Cited – Gus Merchandise Corporation Ltd v Commissioners of Customs and Excise CA 24-Oct-1994
The Commissioners’ general tax management powers include a power to enter into a binding contract with taxpayers as to the method of calculation of Excess VAT paid on sales to agents was not recoverable since there was a binding agreement. . .
Cited – Revenue and Customs v The Boots Company Plc ChD 16-Mar-2009
. .
Cited – Church of England Children’s Society v Revenue and Customs ChD 29-Jul-2005
The Society sent out free newsletters to its unpaid fund-raisers and supporters. They sought to deduct input tax charged to them from the supplies associated with the costs.
Held: The Society might be able to deduct such tax as residual input . .
Cited – Kretztechnik AG v Finanzamt Linz ECJ 26-May-2005
Europa Sixth VAT Directive – Supplies for consideration – Share issue – Admission of a company to a stock exchange – Deductibility of VAT).
Kretztechnik’s objects were the development and sale of . .
Cited – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
Legitimate Expectation once created not withdrawn
The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation.
Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .
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 – Bamber, Regina (on the Application Of) v Revenue and Customs Admn 21-Dec-2005
. .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Regina v Inland Revenue Commission ex parte Preston; In re Preston HL 1984
Duty of Fairness to taxpayer – Written Assurance
The applicant was assured by the Inland Revenue that it would not raise further inquiries on certain tax affairs if he agreed to forgo interest relief which he had claimed and to pay a certain sum in capital gains tax.
Held: Where the . .
Cited – In Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .
Lists of cited by and citing cases may be incomplete.
VAT, Charity, Administrative
Updated: 11 November 2021; Ref: scu.381597
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to give effect to the intentions of Parliament, and statutes were to be read accordingly. The words which suggested it only applied to those which had human life given by fertilisation were words of description and not words of exclusive definition.
The words ‘where fertilisation is complete’ were intended not to qualify which embryos were protected, but the time at which they were protected. This was an Act passed for the protection of live human embryos created outside the human body. The essential thrust of section 1(1)(a) was directed to such embryos, not to the manner of their creation. The process was within the scope of the Act, and could accordingly be licensed under it. There was a ‘clear purpose in the legislation’ which could ‘only be fulfilled if the extension [was] made’.
Lord Bingham said: ‘The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulties. Such an approach not only encourages immense preliminary complexity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutia of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish or effect some improvement to the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provision should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment . . There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking . . The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language . . a revealing example is found in Grant v Southwestern and County Properties Limited [1975] Ch 185, where Walton J had to decide whether a tape recording falls within the expression ‘document’ in the Rules of the Supreme Court. Pointing out, at p190, that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that a tape recording was a document.’
Lord Steyn noted that Acts were generally to be construed as ‘always speaking’ unless they were in an exceptional category dealing with a particular problem. Otherwise the court was free to apply the meaning of the statute to the present day conditions.
Bingham of Cornhill, Steyn, Hoffmann, Millett, Scott of Foscoe, LL
[2003] UKHL 13, Times 14-Mar-2003, [2003] 2 WLR 692, [2003] 2 AC 687, (2003) 71 BMLR 209, [2003] 1 FCR 577, [2003] 2 All ER 113
House of Lords, Bailii
Human Fertilisation and Embryology Act 1990 1(1)
England and Wales
Citing:
Appeal from – Regina (Quintavalle) v Secretary of State for Health CA 18-Jan-2002
A cloned cell, a cell produced by cell nuclear replacement came within the definition of embryo under the Act. The Act required that fertilisation was complete.
Held: The act could be applied in a purposive way. The legislative policy was that . .
Adopted – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Grant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
Cited – Cabell v Markham 1945
In discussing the purposive approach to the interpretation of statutes, the judge held: ‘Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of . .
Cited – Christopher Hill Ltd v Ashington Piggeries Ltd HL 1972
Mink farmers had asked a compounder of animal foods to make up mink food to a supplied formula.
Held: There was reliance as to the suitability of the ingredients only.
Lord Diplock said: ‘Unless the Sale of Goods Act 1893 is to be allowed . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
Cited by:
Cited – Quintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Kay v Commissioner of the Police of the Metropolis HL 26-Nov-2008
The claimant had been involved in a monthly cycle ride through central London which had continued for many years. The ride took place without any central organisation and without any route being pre-planned. They objected to being required to apply . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Gaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
Cited – British Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
Cited – British Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
Cited – Robertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
Cited – English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
Cited – Transport for London v Uber London Ltd Admn 16-Oct-2015
TFL sought a declaration as to the legality of the Uber taxi system. Otherwise unlicensed drivers took fares with fees calculated by means of a smartphone app. The Licensed Taxi drivers said that the app operated as a meter and therefore required . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Cited – Barlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .
Lists of cited by and citing cases may be incomplete.
Health Professions, Administrative, Constitutional
Leading Case
Updated: 11 November 2021; Ref: scu.179803
The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, in effect, whether the decision in East Elloe had been overruled by the Anisminic case. Though it had been subject to some criticism in Anisminic, that case was not directly in point, and the East Elloe decision remained binding.
The system provided for the possibility of an appeal where the aggrieved person felt that there had been some breach of natural justice, but that appeal had to be brought within the time limit provided. Such a decision stood until and unless quashed.
Lord Denning MR, Goff, Shaw LJJ
[1976] EWCA Civ 6, [1977] 1 QB 122
Bailii
Highways Act 1959
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 – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
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 – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Ashbridge Investments Ltd v Minister of Housing and Local Government CA 1965
The Minister had decided to confirm a CPO of premises which were now alleged not to be a house as was required by the legislation under which the order was made.
Held: The court can interfere if the decision maker has taken into account a . .
Lists of cited by and citing cases may be incomplete.
Administrative, Planning, Natural Justice
Leading Case
Updated: 11 November 2021; Ref: scu.262708
The appellant had bought his television licence when the charge was andpound;12 although the minister had already announced that it would later be increased to andpound;18. The Home Office wrote to those who had purchased their licence before the new charge came into effect demanding the payment of the extra andpound;6 failing which their licence would be revoked.
Held: It was an abuse of the Minister’s undoubted discretionary power to revoke TV licences for him to seek to revoke a validly issued licence as a means of levying money which Parliament had given the executive no power to demand. The courts will rule invalidate the exercise of a discretion which contains no express limitations in such a way as to run counter to the policy of the legislation by which it was conferred.
Geoffrey Lane LJ: ‘the proposed revocation . . is illegal for two reasons. First, it is coupled with an illegal demand which taints the revocation and makes that illegal too. Secondly, or possibly putting the same matter in a different way, it is an improper exercise of a discretionary power to use a threat to exercise that power as a means of extracting money which Parliament has given the executive no mandate to demand: see Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884.’
Lord Denning MR: ‘There is another reason for holding that the demands for andpound;6 to be unlawful. They were made contrary to the Bill of Rights. They were an attempt to levy money for use of the Crown without the authority of Parliament: and that is quite enough to damn them.’
and ‘If the licence is to be revoked – and his money forfeited – the Minister would have to give good reasons to justify it.
Of course, if the licensee had done anything wrong – if he had given a cheque for andpound;12 which was dishonoured, or if he had broken the conditions of the licence – the Minister could revoke it. But when the licensee has done nothing wrong at all, I do not think the Minister can lawfully revoke the licence, at any rate, not without offering him his money back, and not even then except for good cause. If he should revoke it without giving reasons, or for no good reason, the courts can set aside his revocation and restore the licence. It would be a misuse of the power conferred on him by Parliament: and these courts have the authority – and, I would add, the duty – to correct a misuse of power by a Minister or his department, no matter how much he may resent it or warn us of the consequences if we do.’
Geoffrey Lane LJ, Lord Denning MR
[1976] 1 QB 629, [1976] 1 All ER 697, [1977] 2 WLR 291
Bill of Rights 1688 4
England and Wales
Cited by:
Cited – Regina v Braintree District Council ex parte Halls Admn 2-Jul-1999
Where a local authority had sold a property to a tenant, and the tenant later came back to request the release from one of the covenants given on the sale, the council was free to charge an appropriate sum for that release. It was not a covenant . .
Cited – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Cited – Wheeler v Leicester City Council; In re Wheeler and others HL 25-Jul-1985
The Council opposed sporting links with South Africa. The local rugby club failed to denounce apartheid and did not seek to dissuade three of its players touring with the national side. The Court of Appeal had refused judicial review of the . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Lists of cited by and citing cases may be incomplete.
Administrative
Leading Case
Updated: 10 November 2021; Ref: scu.197886
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several months, during which time her benefits were cancelled.
Held: The result was to leave the appellant in a Kafka-esque world where she was affected by a decision she was not told of, and which she could not challenge. The Act should be read so that the decision was deemed completed not merely when the decision was made, but also when that decision was communicated: ‘Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule, it is simply an application of the right of access to justice.’ Exceptions to the need to general provide notice might be allowed in exceptional cases, perhaps in criminal matters, but otherwise it was necessary.
Lord Steyn pointed out: ‘the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann’s dictum (in Ex p Simms) applies to fundamental rights beyond the four corners of the Convention.’
Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Millett, Lord Scott of Foscote
[2003] UKHL 36, Times 27-Jun-2003, Gazette 04-Sep-2003, [2003] INLR 521, [2003] HRLR 31, [2003] Imm AR 570, [2004] 2 WLR 603, [2004] 1 AC 604, [2004] 1 All ER 833
House of Lords, Bailii
Asylum and Immigration Appeals Act 1993, Asylum and Immigration Act 1996, Asylum Appeals (Procedure) Rules 1996, Income Support (General) Regulations 1987 (SI 1987/1967) 70(3A)(b)(i), European Convention on Human Rights
England and Wales
Citing:
Appeal from – Anufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
Cited – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Regina v Secretary of State for Social Security Ex Parte B and the Joint Council for the Welfare of Immigrants CA 27-Jun-1996
The Secretary of State had introduced regulations which excluded the statutory right to payment of ‘urgent case’ benefits for asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected, and who . .
Cited – Racke v Hauptzollamt Mainz (Judgment) ECJ 25-Jan-1979
A fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it. . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
At First Instance – Regina (on the Application of Anufrijeva) v Secretary of State for the Home Department and Another Admn 25-Oct-2001
. .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited by:
Cited – Lord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
Cited – Ali v The Head Teacher and Governors of Lord Grey School CA 29-Mar-2004
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and . .
Cited – Andrews v Reading Borough Council QBD 29-Apr-2004
The claimant sought damages for increased road noise resulting from traffic control measures taken by the respondent.
Held: The defendants action to strike out the claim could not succeed. They had not shown that the claim was unarguable, . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – Murchison v Southend Magistrates’ Court Admn 24-Jan-2006
The defendant faced an accusation of having slapped a child in the street. The child’s carer had called the police to say that she thought the complaint a practical joke. The defendant did not give evidence. The magistrates retired and came back to . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.
Immigration, Benefits, Administrative
Leading Case
Updated: 09 November 2021; Ref: scu.183878
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In its decision the tribunal had made reference to the expert medical report and thereby had incorporated it in the judgment. This resulted in an error being apparent on the face of the record, thus allowing the appeal court to intervene and make an order of certiorari. The words of the statute, that any decision of a medical appeal tribunal of a question arising under the Act ‘shall be final’, were insufficiently clear to prevent such an order.
Such jurisdiction was well established. Denning LJ said: ‘On looking . . into the old books I find it very well settled that the remedy of certiorari is never to be taken away by any statute except by the most clear and explicit words. The word ‘final’ is not enough. That only means ‘without appeal’. It does not mean ‘without recourse to certiorari’. It makes the decision final on the facts, but not final on the law. . All the authorities to which we have been referred indicate that this remains true today’.
Denning LJ, Romer LJ, Parker LJ
[1957] 1 QB 574, [1957] 1 All ER 796, [1957] EWCA Civ 1, [1957] 2 WLR 498
Bailii
National Insurance (Industrial Injuries) Act 1946, National Insurance (Industrial Injuries) (Benefit) Regulations 1948 2(5)
England and Wales
Citing:
Cited – Rex v Plowright 1686
The collectors of chimney tax distrained on the landlord of a cottage. The applicable Act provided that any question about such distress should be ‘heard and finally determined by one or more justices . . ‘ The decision of the justices was in error . .
Cited – Rex v Warnford 1825
The courts have power to order an inferior court to complete or correct an imperfect record. . .
Cited – Williams v Lord Bagot (2) 1824
Abbott CJ: ‘If an inferior court . . send up an incomplete record, we may order them to complete it . . If we are not to order, or allowthe officers of the court below to make a perfect record, which unquestionably they are at liberty to do, it will . .
Cited – Foster’s Case 1614
The words of an Act of parliament ‘shall not bind the King’s Bench, because the pleas there are coram ipso Rege.’ . .
Cited – Smith’s Case 1670
An order of the Commissioners of Sewers was brought before the court. The commissioners pointed to a statute which provided that they should not be compelled to certify or return their proceedings.
Held: The contention was rejected: ‘Yet it . .
Cited – Grenville v Royal College of Physicians 1700
. .
Cited – Taylor (formerly Kraupl) v National Assistance Board CA 1951
Lord Denning spoke as to the power of a court to issue a declaration, ‘The remedy is not excluded by the fact that the determination of the board is by statute made ‘final’. Parliament gives the impress of finality to the decisions of the board only . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Rex v Moreley, Rex v Osborne, Rex v Reeve, Rex v Norris 1760
The Conventicle Act said ‘that no other court whatsoever shall intermeddle with any cause or causes of appeal upon this Act: but they shall be finally determined in the quarter sessions only.’
Held: Certiorari was nevertheless ordered: ‘The . .
Cited – Regina v National Insurance Commissioners, ex parte Timmis QBD 1954
A decision of the Commisioners was said by statute to be final, an accordingly certiorari was not available. . .
Cited – Rex v Nat Bell Liquors Ltd PC 7-Apr-1922
(Alberta) Lord Sumner said: ‘Long before Jervis’s Acts statutes had been passed which created an inferior court, and declared its decisions to be ‘final’ and ‘without appeal’, and again and again the Court of the King’s Bench had held that the . .
Cited – Rex v Jukes 1800
A conviction by magistrates was said to be erroneous on its face, having failed to exclude a possible defence. The prosecutor objected to an application that it be quashed, saying ‘that the defendant having elected to appeal to the sessions, the . .
Cited – Rex v Cashiobury Hunderd Justices KBD 1823
The court looked to the ouster of the its jurisdiction to issue an order of certiorari to a lower court ‘certiorari always lies, unless it expressly taken away, and an appeal never lies, unless it is expressly given by the statute . . .’ . .
Cited by:
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Cited – Sivasubramaniam v Wandsworth County Court, Management of Guildford College of Further and Higher Education and Another CA 28-Nov-2002
Having had various claims made in county courts rejected, the applicant was then refused leave to appeal. He sought judicial review of the refusal to give leave to appeal, and now appealed the refusal of leave to apply for a judicial review.
Cited – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
Court of Appeal’s powers limited to those Given
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Cited – HM Revenue and Customs, Regina (on the Application of) v Raymond Machell QC and others Admn 21-Nov-2005
The claimant had had goods taken and destroyed by Revenue and Customs, which had been found to be wrongfully condemned. They had been awarded the market value of the goods at UK prices, though they had been bought in France.
Held: The market . .
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Cited – EBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Lists of cited by and citing cases may be incomplete.
Administrative, Judicial Review
Leading Case
Updated: 09 November 2021; Ref: scu.197036
The claimant sought to challenge the decision to close her local post office on the basis that being retired and disabled and without a car in a rural area, the office was essential and the decision unsupportable. In particular she challenged the removal of post offices from the list of authorities with duties to make provision for the disabled.
Held: Section 49A requires the relevant public body to have ‘due regard’ to the specified matters. This does not impose a duty to achieve results. It does require the public body to take into account any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider.
Aikens LJ after reviewing the authorities considered the fulfilment of the duties of the decision maker: ‘i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.’
Aikens LJ
[2008] EWHC 3158 (Admin), [2009] PTSR 1506
Bailii
Disability Discrimination Act 1995 49A
England and Wales
Cited by:
Cited – Gill, Regina (on The Application of) v Secretary of State for Justice Admn 26-Feb-2010
Failure to provide programme discriminated
The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and . .
Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
Cited – Hurley and Moore, Regina (on The Application of) v Secretary of State for Business Innovation and Skills Admn 17-Feb-2012
The applicants, intending university students, challenged the decision to raise to andpound;9,000 per annum, the fees which might be charged by qualifying universities.
Elias LJ said: ‘Contrary to a submission advanced by Ms Mountfield, I do . .
Cited – Jewish Rights Watch (T/A Jewish Human Rights Watch), Regina (on The Application of) v Leicester City Council Admn 28-Jun-2016
The claimant challenged the legaity of resolutions passed by three local authorities which were critical of the State of Israel. They said that the resolultions infringed the Public Sector Equality Duty under section 149 of the 2010 Act, and also . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Administrative
Leading Case
Updated: 02 November 2021; Ref: scu.278963
The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation in hospital he had sustained permanent brain damage which such treatment would have prevented.
Held: A body which had responsibility for licensing and setting conditions for the boxing matches was liable in negligence when, having assumed responsibility for the boxer’s medical care, the standards it set were inadequate. The setting of rules could be akin to the giving of advice and thus had an indirect influence on the occurrence of the injury. Had the Board said nothing, it might not be liable, but once it gave advice by setting rules, it came to be responsible. If it had in place the appropriate protocols for provision of medical care, the claimant’s injuries would not have been so severe. ‘It seems to me that the authorities support a principle that, where A places himself in a relationship to B in which B’s physical safety becomes dependant upon the acts and omissions of A, A’s conduct can suffice to impose on A a duty to exercise reasonable care for B’s safety.’ and ‘Had the board simply given advice to all involved in professional boxing as to appropriate medical precautions, it would be strongly arguable that there was insufficient proximity between the board and individual boxers to give rise to a duty of care. The board, however, went far beyond this. It made provision in its rules for the medical precautions to be employed and made compliance with these rules mandatory.’
Lord Phillips MR
Gazette 22-Mar-2001, Times 02-Feb-2001, [2000] EWCA Civ 2116, [2001] QB 1134, [2001] PIQR 16
Bailii, Bailii
England and Wales
Citing:
Considered – Perrett v Collins, Underwood PFA (Ulair) Limited (T/a Popular Flying Association) CA 22-May-1998
The plaintiff was a passenger in an aircraft which crashed, and there was a preliminary issue as to the liability to him of those who certified that the aircraft was fit to fly. The propeller was mismatched to the gearbox.
Held: A certifying . .
Appeal from – Watson v British Board of Boxing Control QBD 12-Oct-1999
A governing body of a sport, had a duty to insist on arrangements for sporting events, held under its aegis, to ensure proper access to medical aid. There was no contract between the parties, but boxers had to fight under the Board’s rules. A . .
Applied – Barrett v Ministry of Defence CA 3-Jan-1995
The deceased was an off-duty naval airman. The claim was based upon the alleged negligent failure of the defendant to enforce disciplinary regulations against drunkenness so as to protect the deceased against his own known proclivity for alcohol . .
Cited by:
Cited – Binod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
Cited – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
Cited – Sutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
Cited – 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, . .
Cited – Portsmouth Youth Activities Committee (A Charity) v Poppleton CA 12-Jun-2008
The claimant was injured climbing without ropes (‘bouldering’) at defendant’s activity centre. The defendant appealed against a finding of 25% responsibility in having failed to warn climbers that the existence of thick foam would not remove all . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Lists of cited by and citing cases may be incomplete.
Administrative, Personal Injury, Negligence
Leading Case
Updated: 02 November 2021; Ref: scu.135634
The claimant challenged a decision of the respondent reducing the benefits under the Council Tax Reduction Scheme reducing Council Tax for those in need, saying that the Council’s consultation had been inadequate.
Held: The consultation was procedurally unfair because the consultation documentation gave a misleading impression in failing to mention other ways of absorbing the shortfall in funding which the proposed scheme was intended to meet.
Lord Reid said: ‘This case is . . concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore vary greatly from one statutory context to another: ‘the nature and the object of consultation must be related to the circumstances which call for it’ . . Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme.’
Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed
[2014] UKSC 56, [2014] WLR(D) 486, [2014] 1 WLR 3947, UKSC 2013/0116, [2014] LGR 823, [2015] 1 All ER 495, [2014] PTSR 1317
Bailii, WLRD, Bailii Summary, SC Summary, SC
Welfare Reform Act 2012
England and Wales
Citing:
At first instance – M and S, Regina (on The Application of) v London Borough of Haringey Admn 7-Feb-2013
The claimants challenged changes to the system of housing benefits.
Held: The claims were dismissed. . .
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 – Baker, Regina (on the Application of) v Devon County Council CA 21-Dec-1992
The plaintiffs appealed against orders dismissing claims for judicial review. They had challenged the intended closure of residential homes for old people. The plaintiffs said that there had been inadequate consultation, and the Councils argued that . .
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 – Birkett v Acorn Business Machines Limited CA 16-Jul-1999
The parties had entered into a contract, which both knew was to be used to defraud a third party finance company. When one sued the other for breach, the court refused to order the contract to be enforced when he became aware of the fraud.
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – Salat v Barutis CA 20-Nov-2013
The claimant had been knocked from his motor cyle by the defendant. He hired a replacement, but when he sought payment of the associated hire charges, the defendant said that the hire company had failed to comply with the 208 Regulations, and that . .
Cited – Royal Brompton and Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts and Another Admn 7-Nov-2011
The claimant, the Royal Brompton and Harefield NHS Foundation Trust sought to quash as flawed and unlawful a consultation by the first defendant concerning the reconfiguration of paediatric congenital cardiac services (PCCS) in England. . .
Cited – Royal Brompton and Harefield NHS Foundation Trust, Regina (on The Application of) v Joint Committee of Primary Care Trusts and Another CA 19-Apr-2012
The defendant appealed against a finding that its consultation over the rationalisation of pediatric cardiac surgical facilities had been defective and unlawful. . .
Cited – Fletcher v Minister of Town and Country Planning 1947
A local authority being consulted about the government’s proposed designation of Stevenage as a ‘new town’ would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public, particularly . .
Cited – Nichol v Gateshead Metropolitan Borough Council CA 1988
Gateshead, confronted by a falling birth rate and therefore an inability to sustain a viable sixth form in all its secondary schools, decided to set up sixth form colleges instead. Local parents had failed to establish that Gateshead’s prior . .
Cited – The Mayor and Corporation of Port Louis v The Honourable Attorney General of Mauritiuis PC 27-Apr-1965
Meaningful public participation in a decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also . .
Cited – Medway Council and Kent County Council, Essex County Council, Mead; Fossett v Secretary of State for Transport Admn 26-Nov-2002
. .
Cited – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 9-Nov-2007
The action group appealed against refusal of a judicial review of guidelines as to the employment of non-EU doctors, saying that they were in effect immigration rules and issuable only under the 1971 Act. The court had said that since the guidance . .
Cited by:
Cited – Robson and Another, Regina (on The Application of) v Salford City Council CA 20-Jan-2015
The appellants, all severely disabled appealed against the refusal of their judicial review of the substantial withdrawal by the Council of a service providing them with transport to local day care facilities. They said that the council had failed . .
Lists of cited by and citing cases may be incomplete.
Administrative, Benefits
Leading Case
Updated: 02 November 2021; Ref: scu.538151
The claimant challenged the decision of the respondent to reveal to his employers details of a conviction in 1987, when he was 15, for sexual assault on a child, and that he was presently on bail pending a decision for a further allegation. He was employed to make deliveries including to private homes. He was summarily dismissed, but the investigation referred to did not proceed to charge. The spent conviction was not of a character to make it exemption from being spent. The officer had had no regard to the Home Office circular controlling such disclosures.
Held: The claimant had been given opportunity to explain the extent of his contact with children but had not done so. The decision to disclose was made by a senior officer, not the one complained of. The spent conviction should not have been disclosed, but the police were entitled to take it into account in judging the need to disclose the then current investigation.
Nicol J
[2009] EWHC 747 (Admin)
Bailii
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1974, Rehabilitation of Offenders Act 1974 5(5)4
England and Wales
Citing:
Cited – London Borough of Newham v Khatun, Zeb and Iqbal CA 24-Feb-2004
The council made offers of accommodation which were rejected as inappropriate by the proposed tenants.
Held: The council was given a responsibility to act reasonably. It was for them, not the court to make that assessment subject only to . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Lists of cited by and citing cases may be incomplete.
Police, Administrative
Updated: 02 November 2021; Ref: scu.331000
The Claimants say this case raises an important legal issue. ‘Can a public body which in law is not a National Park, represent itself (and allow itself to be represented) as a National Park and thereby to enjoy the benefits of National Park status despite the fact that that authority has decided to cease to seek to become a National Park inter alia because it does not wish to be subject to the legal duties imposed on National Parks and National Park Authorities?’
Held: The claim failed. The phrase ‘National Park’ had come to be an ordinary part of the English language describing an area of countryside, usually one important for its natural beauty, wildlife and recreation. The use of the phrase ‘national park’ was not exclusive to the statutory code for National Parks. The relevant legislation had no legal monopoly over the use of the term ‘national park’, whether capitalised or not.
‘, even if the view were to be taken that, as a matter of fairness, the Authority ought to have consulted on a proposal not to pursue ‘the long-term vision’ in the Broads Plan, it is plain that relief should be refused under section 31(2A). The only purpose which the Claimants suggested for requiring such consultation to have taken place is that consultees could have argued for the adoption of the Sandford Principle either now or in the future.’
Holgate J
[2016] EWHC 799 (Admin), [2016] WLR(D) 180, [2017] 1 WLR 567
Bailii, WLRD
National Parks and Access to the Countryside Act 1949
England and Wales
Administrative, Land, Planning
Updated: 02 November 2021; Ref: scu.562131
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their experience in reaching their decision. The appeal process was an essentially domestic proceeding ‘in which experience and opinion as to what is in the interest of racing as a whole play a large part, and in which the standards are those which have come to be accepted over the history of this sporting activity.’
Following the Leary case: ‘In their Lordships’ judgment, such intermediate cases exist. In them, it is for the court . . to decide whether at the end of the day, there has been a fair result reached by fair methods . . Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect appeals or rehearings will not be sufficient to produce a just result . . There may also be cases when the appeal process itself is less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a full and fair enquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision.’
and ‘What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation.’
Lord Wilberforce said: ‘those who have joined in an organisation or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect’. The Board considered whether there was a general rule that internal appellate proceedings could cure a defect caused by a failure of natural justice in the original proceedings: ‘. . . their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at the original hearing, whether administrative or quasi-judicial, can be ‘cured’ through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so.’
and ‘This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships opinion would be, if it became necessary to fix on one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.’
Wilberforce, Dilhorne, Hailsham of St Marylebone, Keith of Kinkel LL
[1979] UKPC 1, [1979] 2 All ER 440, [1980] AC 574, [1979] 2 WLR 755
Bailii, Bailii
Australia
Citing:
Applied but limited – Leary v National Union of Vehicle Builders 1971
The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’ . .
Cited by:
Cited – Regina (DR) (AM) v St George’s Catholic School and Others, Regina (A) v Kingsmead School Governors and Another CA 13-Dec-2002
The applicants appealed the refusal of judicial review of the refusals of their appeals against exclusion from school.
Held: The Act provided a full appeal procedure from the initial decision of the school’s head teacher, first to the . .
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 – Flaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Cited – Whitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
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 – McKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
Cited – Lloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .
Lists of cited by and citing cases may be incomplete.
Administrative, Employment, Commonwealth, Natural Justice
Leading Case
Updated: 01 November 2021; Ref: scu.245736
The claimant said that she had been detained in excess of the period allowed under the 1987 Regulations, and that that detention was unlawful. She now appealed against the striking out of her claim.
Held: Her action failed. The availablility of a remedy by way of judicial review for a breach of statutory duty is a strong indicator that a private law action for damages will not lie for the breach.
The Human Rights Convention could not be applied here: ‘there was in this case no ambiguity, no obscurity and no absurdity in the statutory provisions, and there was accordingly no ground upon which recourse could be had to the Convention.’
As to the claim against the CPS: ‘There is nothing in the l985 Act or in the 1987 Regulations to suggest that either Parliament or the Secretary of State foresaw the present, very unhappy, conjunction of events: failure to arraign the plaintiff before expiry of 112 days; failure by the CPS to perform its duty under Regulation 6; and failure by the plaintiff to seek release. It cannot in my opinion have been intended to confer a private law right of action for damages in such circumstances.’
Lord Bingham said: ‘The plaintiff was in the custody of the Crown Court. Only by order of the court could that period of custody be brought to an end. Once the custody time limit had expired without extension, the Crown Court would have been obliged to order the release of the plaintiff, but such release would have been on bail and the Crown Court could have imposed terms with which the plaintiff would have been obliged to comply after release. Once the custody time limit had expired, the plaintiff was in my view unlawfully detained, and an order which would have led to her release could have been obtained either from the Crown Court or from the Divisional Court; but it does not follow that in the absence of any such order the Governor was guilty of falsely imprisoning the plaintiff and in my view he was neither entitled nor bound to release her.’
Lord Bingham of Cornhill LCJ, Auld, Mummery LJJ
[1997] 1 WLR 328, [1996] EWCA Civ 1070, [1997] 1 All ER 385
Bailii
Prosecution of Offences (Custody Time Limits) Regulations 1987, Magistrates’ Courts Act 1980 63, Prosecution of Offences Act 1985 22, European Convention on Human Rights 5
England and Wales
Citing:
Cited – Regina v Maidstone Crown Court Ex Parte Clark QBD 19-Dec-1994
The judge was wrong to insist on the defendant entering a ‘holding plea’ at an arraignment where this was intended only to circumvent the custody time limits.
Glidewell LJ set out the applicable legislation and summarised its effect: ‘Put . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited by:
Cited – Cullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) HL 10-Jul-2003
The claimant had been arrested. He had been refused access to a solicitor whilst detaiined, but, in breach of statutory duty, he had not been given reasons as to why access was denied. He sought damages for that failure.
Held: If damages were . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Administrative, Prisons, Human Rights
Leading Case
Updated: 01 November 2021; Ref: scu.184496
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of his case in the US. The remaining issue was as to whether the earlier judgment should now be made available without redactions.
Held: An allegation of cruel, inhuman or degrading treatment was to be treated on the same basis as torture in the circumstances of the present case, and a claim to conceal evidence of cruel, inhuman or degrading treatment or torture under the guise of public interest immunity could not be countenanced as it was incompatible with international law and values. ‘It is the upholding of the rule of law . . that is a factor of the greatest public interest in this case, given the allegations against officials of the United States Government and the role of officials of the Government of the United Kingdom in facilitating what is alleged.’ The requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice. Nevertheless the US had threatened that disclosure would undermine the intelligence relationship with the UK. The alternatives were not adequate. The court could not go behind the Foreign Secretary’s assertion that disclosure would undermine the ability of the state to protect its citizens. The details would not be disclosed. If they are to be disclosed it must be by the US government.
The court identified four questions for redaction:- a) Is there a public interest in bringing the redacted paragraph into the public domain? b) Will disclosure bring about a real risk of serious harm to an important public interest, and if so, which interest? c) Can the real risk of serious harm to national security be protected by other methods or more limited disclosure? d) If the alternatives are insufficient, where does the balance of the public interest lie?
Thomas LJ, Lloyd Jones J
[2009] EWHC 152 (Admin)
Bailii
England and Wales
Citing:
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 29-Aug-2008
The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – ex parte Guardian Newspapers Ltd CACD 30-Sep-1998
The defendants purported to serve a notice under Rule 24A(1) of the Crown Court Rules 1982 of an intention to apply for a hearing in camera of their application that the trial be stopped as an abuse of process.
Held: Where an application was . .
Cited – C v Crown Prosecution Service Admn 8-Feb-2008
The court considered the practice of hearing submissions from the media in relation to reporting restrictions.
Held: Thomas LJ rejected the submission that, in conducting the Re S balancing exercise the Court should have regard to the public . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Williams v Home Office (No 2) 2-Jan-1981
The plaintiff prisoner had been transferred from ordinary prison to a special control unit which had been established at the prison as a means of containing and controlling prisoners who were considered to be troublemakers and inducing them to . .
Cited – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
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 – Regina v Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – McCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Castells v Spain ECHR 23-Apr-1992
The conviction of the applicant for publishing in a weekly magazine an article which insulted the government with the penalty of disqualification from public office, violated the applicants freedom of expression within the meaning of Article 10. ‘ . .
Cited – Observer and Guardian v The United Kingdom ECHR 26-Nov-1991
The newspapers challenged orders preventing their publication of extracts of the ‘Spycatcher’ book.
Held: The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is . .
Cited – Pretto And Others v Italy ECHR 8-Dec-1983
The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; . .
Cited – Campbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
Cited – Hector v Attorney General of Antigua PC 1990
Lord Bridge of Harwich said that: ‘In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
Cited – Assenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited by:
Cited – Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence (PII) Admn 10-Jul-2009
The claimants alleged murder and ill-treatment by the British Armed forces in Iraq. The defendant had failed repeatedly to comply with disclosure orders and an indemnity costs award had been made against him. The defendant had in particular . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60 Admn 19-Nov-2009
The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
See Also – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .
Lists of cited by and citing cases may be incomplete.
Administrative, Human Rights, Constitutional, Media
Updated: 01 November 2021; Ref: scu.282626
A statute provided that any decision of the Quarter Sessions as to the levying of certain rates was to be ‘final, binding, and conclusive to all intents and purposes whatsoever’, and that no order made in that connection ‘shall . . be removed or removable by certiorari, or any other writ or process whatsoever, . . ; any law or statute to the contrary thereof in anywise notwithstanding’. An application was made on the basis that one member of the tribunal was disqualified.
Held: Certiorari did lie. Lord Denman CJ said: ‘the clause which takes away the certiorari does not preclude our exercising a superintendence over the proceedings, so far as to see that what is done shall be in pursuance of the statute. The statute cannot affect our right and duty to see justice executed; and, here, I am clearly of opinion that justice has not been executed.’
Lord Denman CJ
(1841) 3 QBD 467, [1841] EngR 582, (1841) 1 QB 466, (1841) 113 ER 1211
Commonlii
Cited by:
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Lists of cited by and citing cases may be incomplete.
Administrative, Constitutional
Leading Case
Updated: 01 November 2021; Ref: scu.222198
Whether transmission of British citizenship through the female line allowed from 1983 was retrospective: ‘With effect from 1 January 1983, the restriction to descent in the male line was abrogated by legislation for those born after that date, and 20 years later in 2003 the legislation was retrospectively amended so as to allow those born before 1983 to acquire citizenship through the female line. However, when Ms Romein, who had been born under the old regime, sought to take advantage of the change in 2013, her application for citizenship was rejected on the ground that she was unable to satisfy the statutory condition of registration within a year. The reason why she was unable to do so was that although the law was now deemed at all material times to have allowed claims to citizenship by descent through the female line, the staff of British consulates, acting entirely properly under the law as it actually was, would have refused to register her birth because she was ineligible. A result so paradoxical clearly calls for scrutiny.’
Held: The decision of the Court of session was affirmed.
‘ . . the solution to the paradox is more straightforward . . Because section 4C requires one to assume that section 5 of the 1948 Act had always provided for citizenship by descent in the female line, it is not possible to apply the registration condition in section 5(1)(b) of the 1948 Act to those claiming on that basis, because its application would make nonsense of that assumption. The past is done, and cannot be undone. For nearly 70 years, British consuls have declined to register the births of those claiming by descent through the female line. Throughout that period any purported registration of a person claiming citizenship only through the female line would have been legally ineffective. Given that we are forbidden by section 4C(3D) to assume contrary to the facts that the birth was in fact registered, the only way in which effect can be given to section 4C(3) is to treat the registration condition in section 5(1)(b) as being inapplicable in cases where citizenship is claimed by descent from a mother.’
Lady Hale, President, Lord Sumption, Lord Reed, Lord Hodge, Lady Black
[2018] UKSC 6, [2018] AC 585, 2018 GWD 24-308, 2018 SC (UKSC) 122, [2018] WLR(D) 84, [2018] 2 All ER 849, 2018 SLT 790, [2018] 2 WLR 672, [2018] Imm AR 949, [2018] INLR 287, UKSC 2016/0165, UKSC 2018/0177
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2017 Dec 06 am Video, SC 2017 Dec 06 pm Video, WLRD, SC, SC Summary, SC Summary Video, SC 07 Oct 19 am Video, SC 07 Oct 19 pm Video, SC 08 Oct 19 am Video, SC 08 Oct 19 pm Video, SC 09 Oct 19 am Video, SC 09 Oct 19 pm Video, SC 17 Jun 19 am Video, SC 17 Jun 19 pm Video
Scotland
Citing:
Appeal from (Inner House) – Romein v The Advocate General SCS 1-Apr-2016
The petitioner had applied for registration as a British citizen pursuant to section 4C of the British Nationality Act 1981, as amended by the Citizenship and Immigration Act 2009. The respondent, the Secretary of State for the Home Department . .
Lists of cited by and citing cases may be incomplete.
Administrative, Immigration, Discrimination
Leading Case
Updated: 01 November 2021; Ref: scu.604211
The applicant company produced oral snuff. It had opened a factory in the United Kingdom after the Government, on advice, had negotiated an agreement with it to restrict the marketing of the product. The committee, basing itself not on new evidence but on a changed evaluation of the existing evidence, subsequently advised the Secretary of State to ban the product; and the Secretary of State, without disclosing the advice to the company, laid regulations banning the product before Parliament.
Held: The Secretary of State had a duty to consult the company and had acted unfairly in failing to disclose the committee’s advice. The advice was ‘crucial.
Taylor LJ said: ‘One cannot help feeling that the denial of the applicants’ request was due to an inbuilt reluctance to give reasons or disclose advice lest it give opponents fuel for argument. One can understand and respect the need for ministers to preserve confidentiality as to the in-house advice they receive on administrative and political issues from their civil service staff. But here, the advice was from a body of independent experts set up to advise the Secretary of State on scientific matters I can see no ground in logic or reason for declining to show the applicants the text of the advice. In view of the total change of policy the Regulations would bring about and its unique impact on the applicants, fairness demanded that they should be treated with candour. To conceal from them the scientific advice which directly led to the ban was, in my judgment, unfair and unlawful.’
As to the argument that the Regulations were made for the purpose of protecting health and therefore fell outside the scope of enabling legislation concerned with consumer protection, he said that the legislation was ‘apt to protect the consumer whether one calls its purpose consumer protection or public health’.
Taylor LJ
[1992] QB 353, [1991] 3 WLR 529, [1992] 1 All ER 212
Consumer Protection Act 1987
England and Wales
Cited by:
Cited – Eisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.
Administrative
Leading Case
Updated: 01 November 2021; Ref: scu.267527
A right of appeal against the exercise of a statutory authority requires no general right to an oral hearing before an administrative decision maker, and a hearing on the papers may be perfectly fair for legal purposes.
Lord Shaw said: ‘The words ‘natural justice’ occur in arguments and sometimes in judicial pronouncements in such cases. My Lords, when a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term ‘natural justice’ means that a result or process should be just, it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous.’
Lord Shaw
[1915] AC 120, [1914-15] All ER 1, 30 TLR 672
England and Wales
Cited by:
Cited – Regina v Army Board of Defence Council, ex parte Anderson QBD 1991
army_anderson1991
Members of the Armed Forces who alleged discrimination did not have access to Industrial Tribunals. The only recourse was to make a service complaint which would then be considered by the Army Board. Anderson complained of race discrimination. His . .
Lists of cited by and citing cases may be incomplete.
Administrative, Natural Justice
Leading Case
Updated: 01 November 2021; Ref: scu.539817
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an appeal to the County Court on a point of law.
Held: The decision was one which did engage the applicant’s human rights. The officer was not an independent tribunal, but his decision was of the nature recognised in the jurisprudence as administrative, being areas of law considered regulatory and welfare schemes in which decision making was by custom delegated to administrative officers, and such decisions typically did not give rise to a right of appeal on the facts. The appeal on law was adequate.
Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett, Lord Walker
[2003] UKHL 5, [2003] 1 All ER 739, Gazette 03-Apr-2003, [2003] 2 WLR 388, [2003] 2 AC 430, [2003] ACD 41, [2003] NPC 21, [2003] HRLR 16, [2003] HLR 32, [2003] UKHRR 419, [2003] BLGR 205, 14 BHRC 400, [2003] Hous LR 20
House of Lords, Bailii, Bailii
European Convention on Human Rights 6.1, Housing Act 1996 204, Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (1996 No 3205, Allocation of Homelessness Functions (review Procedures) Regulations 1999 (1999 No 71)
England and Wales
Citing:
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Appeal from – London Borough of Tower Hamlets v Runa Begum CA 6-Mar-2002
The applicant had applied for rehousing as a homeless person. She was offered interim accommodation but refused it. Her case was reviewed, and her reasons rejected. She claimed the procedure was unfair, in that the authority was looking at decisions . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – London Borough of Newham v Adan CA 14-Dec-2001
The applicant was a Dutch national. She appealed for housing as a homeless person. The local authority, after review found her not to have a settled intention to stay in England. She appealed, to the County Court, and succeeded, and the Authority . .
Cited – Kingsley v The United Kingdom (No 2) ECHR 28-May-2002
The finding that a party had been denied a fair trial may of itself be sufficient compensation. The applicant had been excluded from management of licensed casinos. The appeal board had been found to have given the appearance of bias against him. . .
Cited – The Secretary of State for Health, Dorset County Council v The Personal Representative of Christopher Beeson CA 18-Dec-2002
The deceased had been adjudged by his local authority to have deprived himself of his house under the Regulations. Complaint was made that the procedure did not allow an appeal and therefore deprived him of his rights under article 6.
Held: . .
Cited – Kaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .
Cited by:
Cited – Dyson Limited v The Registrar of Trade Marks ChD 15-May-2003
Applications for trade marks on behalf of the claimant had been rejected. Acquired distinctiveness was a significant issue, and the question of whether the appeal was a review or a rehearing was significant. In this appeal, the parties had given . .
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 . .
Cited – Secretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Feld, Lord Mayor and Citizens of the City of Westminster v London Borough of Barnet, Lord Mayor and Citizens of the City of Westminster CA 18-Oct-2004
The applicants sought housing as homeless people. After the refusal of their applications, they sought a review, and in due course a second review. That second review was conducted by the same officer who had conducted the first. The appellant . .
Cited – Hall v London Borough of Wandsworth CA 17-Dec-2004
The applicants appealed refusal of their applications for housing having priority housing need being vulnerable because of their mental illness. They said that the original decisions had been reviewed, and that on review deficiencies had been . .
Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Cited – Cramp v Hastings Borough Council CA 29-Jul-2005
Cases challenged successful appeals by applicants for housing for homelessness, where a county court had ordered a second review of the application. . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – MB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
Cited – Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – F v Birmingham City Council CA 2-Nov-2006
The applicant sought housing as a homeless person with her children. The authority found her in priority need, but intentionally homeless. Her appeal against the adverse review failed, and she appealed again. She had given up a council flat and had . .
Cited – Ali v Birmingham City Council CA 7-Nov-2008
The Council said that it had discharged its duty to house the claimants after they had refused an offer of accommodation, and that decision had been reviewed. The claimant denied receiving a notice under the procedure. The court was asked whether . .
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 – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Cart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
Cited – Bubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .
Cited – Bubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
Lists of cited by and citing cases may be incomplete.
Housing, Human Rights, Administrative, Local Government
Leading Case
Updated: 31 October 2021; Ref: scu.179047
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 circumstances of the deaths had not been subject to cross examination.
Held: The right to life is the most fundamental of human rights, and no derogation is to be allowed outside times of war. Where the circumstances of a death are exclusively within the power of the authorities, the burden of proof could be regarded as falling on the authorities. The right could be infringed by a failure to investigate such deaths properly. The inadequacies were such as to lead the court to conclude that that the right to life had been infringed. ‘there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.’
Times 18-May-2001, 24746/94, 37715/97, 30054/96, [2001] 11 BHRC 1, [2001] 37 EHRR 52, 28883/95, (2002) 34 EHRR 20, [2001] ECHR 323, [2001] ECHR 324, [2001] ECHR 325, [2001] ECHR 327, [2001] ECHR 328, [2001] ECHR 329, [2001] ECHR 330
Worldlii, Worldlii, Worldlii, Bailii, Bailii, Bailii, Bailii
European Convention on Human Rights 2
Human Rights
Citing:
See also – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited by:
Cited – Regina (Amin) v Secretary of State for the Home Department QBD 5-Oct-2001
An Asian youth was placed in a cell with another who was well known to be violent and racist. He was bludgeoned to death. The family sought a public investigation into how he came to be placed in such a position. An investigation had been refused by . .
Cited – Khan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
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 – Regina (Wright) v Secretary of State for the Home Department Admn 2001
A serving prisoner suffered a severe asthmatic attack in his cell and died. An inquest was held at which the family of the deceased were present, but unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment . .
See Also – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
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 – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
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 – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited 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 – Smith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
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 – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
See Also – McKerr v United Kingdom; Action of the Security Forces in Northern Ireland ECHR 17-Apr-2009
. .
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 – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Coroners, Armed Forces
Leading Case
Updated: 31 October 2021; Ref: scu.166103
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages.
Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant ‘cannot be compelled to give an undertaking but if he will not give it he will not get the injunction.’
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: ‘The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages.’ and ‘The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.’
. . ‘In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects).’
Lord Diplock, Lord Reid, Lord Wilberforce
[1975] AC 295, [1974] 2 All ER 1128, [1974] 3 WLR 104
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2), Monopolies and Mergers Act 1965
England and Wales
Cited by:
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 – Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
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 – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187068
Three applications before the court in these public procurement proceedings which relate to the tendering process for air navigation services at Gatwick Airport.
Akenhead J
[2014] EWHC 3728 (TCC)
Bailii
England and Wales
Updated: 27 September 2021; Ref: scu.539382
The County Court Judge had directed the removal from the electoral register the names of a number of persons who were not party to the proceedings before him. Motions were brought in the Divisional Court for an order of certiorari to quash his directions. The issue arose as to whether there was jurisdiction to do so, having regard to s.107 of the County Courts Act 1959 which provided: ‘Subject to the provisions of any other Act relating to county courts, no judgment or order of any judge of county courts, nor any appeal proceedings brought before him or pending in his court, shall be removed by appeal, motion, certiorari or otherwise into any other court whatever, except in the manner and according to the provisions of this Act mentioned.’
Held: Lord Parker CJ said: ‘The leading case on the matter is Ex p. Bradlaugh (1878), 3 Q.B.D. 509, where Mellor, J., put the principle in these words . . ‘It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.’
To the same effect is a number of cases including, coming to quite recent times, R. v. Worthington-Evans, Ex p. Madan [1959] 2 Q.B. at p.152 and Re Gilmore’s Application [1957] 1 Q.B. at p.588. I am quite satisfied that certiorari will lie against a county court judge if he has acted without jurisdiction, notwithstanding the sections of the County Courts Act, 1959, to which I have referred.’
Lord Parker CJ
[1960] 2 All ER 385
County Courts Act 1959 107
England and Wales
Cited by:
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.442689
A rent tribunal could not give itself jurisdiction over an unfurnished letting. Devlin J said: ‘While they will not allow every empty threat to their jurisdiction to deter them from their proper business of fixing reasonable rents, they will likewise appreciate that they are not by their nature equipped for the trial of matters which in the ordinary civil court would be determined after pleading and discovery had been given and evidence on oath tested by cross-examination, and possibly, also after trial by jury. The tribunal cannot be required to determine summarily such an issue if it involves a point of substance and if one or other of the parties is willing to have it determined in the ordinary civil courts.’
Devlin J
[1951] 2 KB 1
England and Wales
Cited by:
Cited – Grammer v Lane and Others CA 2-Dec-1999
A partnership involving the plaintiff took a tenancy of agricutural land. The plaintiff then said that the tenency had been extended to other land. The successor to the freehold denied that extension, but served a rent demand and for repairs both . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.238658
The lecturer sought an order for the University to comply with what he understood were its own rules. The House considered the availability of a remedy of certiorari in challenging a decision of the University visitors.
Held: A university is not a public body and its decisions are not subject to judicial review. Where an applicant’s Convention Rights, in particular Art 6, are not engaged then the matters in dispute would presently fall exclusively within the visitorial jurisdiction of the university – subject only to the possibility that any ultimate decision of the Board of Visitors might itself be judicially reviewable. Someone such as a professor may be both office holder and employee.
Lord Griffiths said: ‘the exclusivity of the jurisdiction of the visitor is in English law beyond doubt and established by an unbroken line of authority spanning the last three centuries from Philips v Bury (1694) Skin 447 to Hines v Birkbeck College (1985) 3 All ER 15L.’ and ‘I now turn to consider the scope of the visitatorial jurisdiction. The jurisdiction stems from the power recognised by the common law in the founder of an eleemosynary corporation to provide the laws under which the object of his charity was to be governed and to be sole judge of the interpretation and application of these laws either by himself or by such person as he should appoint as a visitor.’
Lord Griffiths
[1987] 1 AC 795, [1987] 1 All ER 834, [1987] ICR 245, [1987] 2 WLR 677
England and Wales
Citing:
Cited – Philips v Bury PC 1694
A university visitor, acting as a judge has exclusive jurisdiction, and his decision is final in all matters within his jurisdiction. . .
Cited by:
Remarks Explained – Regina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.542701
The test for what sex somebody was for the purposes of validating a marriage was the sex as decided and set out on the birth registration certificate. Though increasing recognition has been given to the complexities of gender identity over the years, this was an area which, if it was to be reformed, must be reformed by parliament and as a comprehensive whole, not piecemeal by judges. Johnson J said: ‘There is now a distinct possibility that were it possible to do so, examination of the brain of a living individual would reveal further indications of gender. But that is not yet possible and the practical reality is that whatever may ultimately emerge from advances in medical science, the only criteria for determining the gender of an individual remain those identified in Corbett.’
Johnson J
Times 22-Nov-2000, [2001] 1 FLR 389
Matrimonial Causes Act 1973 11
England and Wales
Citing:
Cited – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .
Cited by:
Appeal from – Bellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .
At first instance – Bellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.78325
The claimant complained that after alleging unlawful interception of his communications, the hearing before the Investigatory Powers Tribunal was not attended by appropriate safeguards. He had been a campaigner against police abuse. His requests to MI5 and GCHQ under the Data Protection Act 1998 to discover whether information about him was being processed had been refused on the grounds of national security. Complaints about such refusals to the Investigatory Powers Tribunal (‘IPT’) chaired by Lord Justice Mummery were examined in private. They concluded with the IPT simply notifying Mr Kennedy that no determination had been made in his favour in respect of his complaints. This ‘meant either that there had been no interception or that any interception which took place was lawful’.
Held: The claim under article 8 failed. The domestic law, practice and safeguards relating to surveillance satisfied the conditions of that article. Leander v Sweden established that the requirement that the consequences of the domestic law must be foreseeable, before any interference could be said to be ‘in accordance with the law’ under article 8(2), ‘cannot be the same in the context of interception of communications as in many other fields’.
As to Article 6, the Court found it unnecessary to decide whether this article applies to proceedings concerning a decision to put someone under surveillance, because it concluded that, assuming it does, the IPT’s rules of procedure complied with the requirements of article 6(1).
[2010] ECHR 682, 26839/05, [2011] 52 EHRR 4
Bailii
Regulation of Investigatory Powers Act 2000 65(2)(b) 65(4), European Convention on Human Rights 8 13, Data Protection Act 1998
Human Rights
Citing:
See Also – Kennedy v United Kingdom ECHR 20-Nov-2008
. .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Doorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
Cited – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .
Cited by:
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Secretary of State for The Home Department v Davis MP and Others CA 20-Nov-2015
The Secretary of State appealed against a ruling that section 1 of the 2014 Act was inconsistent wih European law.
Held: The following questions were referred to the CJEU:
(1) Did the CJEU in Digital Rights Ireland intend to lay down . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Privacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.430517
The Revenue had refused to exercise a discretion in favour of the taxpayer in the same form it had granted for over twenty years. The taxpayer complained that this was unfair.
Held: The new approach to late applications, brought in without any warning, was so unfair as to amount to an abuse of power, notwithstanding that the court accepted that the practice was not such as to engage the legitimate expectation doctrine.
The Commissioners are under a common law duty to treat taxpayers fairly, and not to discriminate without justification between taxpayers. It is not always a condition for a legitimate expectation to arise that there should be a clear, unambiguous and unqualified representation by the public authority, the test is whether the public authority has acted so unfairly that its conduct amounts to an abuse of power.
Sir Thomas Bingham MR said: ‘the categories of unfairness are not closed, and precedent should act as a guide not a cage’ and ‘These points cumulatively persuade me that on the unique facts of this case the Revenue’s argument should be rejected. On the history here, I consider that to reject Unilever’s claims in reliance on the time limit, without clear and general advance notice, is so unfair as to amount to an abuse of power’.
Simon Brown LJ said: ”Unfairness amounting to an abuse of power’ as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power. As Lord Donaldson MR said in R v ITC, ex p TSW: ‘The test in public law is fairness, not an adaptation of the law of contract or estoppel’.’
and ‘on the one hand mere unfairness – conduct which may be characterised as ‘a bit rich’ but nevertheless understandable, and on the other hand a decision so outrageously unfair that it should not be allowed to stand.’
Simon Brown LJ, Sir Thomas Bingham MR
[1996] STC 681
England and Wales
Citing:
Appeal from – Regina v Inland Revenue Commissioners Ex Parte Unilever Plc and Others QBD 12-Sep-1994
The Inland Revenue is to notify taxpayer of a change in acquiescence in practice to late payment. . .
Cited by:
Cited – Regina on the Application of Wilkinson v The Commissioners of Inland Revenue CA 18-Jun-2003
The claimant had not received the same tax allowance following his wife’s death as would have been received by a woman surviving her husband. That law had been declared incompatible with Human Rtights law as discriminatory, but the respondent . .
Cited – Rowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
Dictum Adopted – Regina (On the Application of Bajram Zeqiri) v Secretary of State for The Home Department CA 12-Mar-2001
The applicant’s case had been delayed to allow a test case as to whether Germany was to be treated as a safe country for the return of asylum seekers. Before the test case appeal was abandoned, circumstances changed so as to allow certification of . .
Cited – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Applied – Regina v The National Lottery Commission ex parte Camelot Group Plc Admn 21-Sep-2000
The Commission had considered bids tendered in open competition to run The National Lottery. Neither of the two candidates who entered bids was considered to have satisfied all the criteria necessary to be given the relevant licence. The Commission . .
Cited – London Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
Judicial review was sought of the changes to the marking systems for GCSE English in 2012.
Held: The claim failed. Though properly brought, the failure was in the underlying structue of the qualification, and not in the respondent’s attempts . .
Cited – Gallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.184333
The court considered the need for a public authority to be candid when replying to a claim for judicial review.
Held: In the context, an omission to disclose can amount to misleading the court.
Hickinbottom, Singh, Asplin LJJ
[2018] EWCA Civ 1812, [2018] WLR(D) 497, [2019] 1 All ER 416, [2019] INLR 84, [2018] 4 WLR 123, [2019] Imm AR 86
Bailii, WLRD
England and Wales
Updated: 14 July 2021; Ref: scu.621033
The three appellants were deprived of their nationality when they were in Pakistan where they had been since 2009. One of their arguments before SIAC was that they had not been allowed to return to the UK to take part in their appeals. SIAC decided a preliminary issue against them which was whether the appeals should be allowed because it was impossible to decide them fairly as the appellants were in Pakistan. They submitted that they were inhibited from giving full instructions to their solicitors who had visited Pakistan three times, although they had put in written statements. The Secretary of State pointed out that they had not engaged with the substance of the OPEN national security case against them. They submitted that SIAC should either have allowed their appeals or in their parallel application for judicial review the deprivation orders should be quashed and orders made that the appeals be heard again with the appellants enabled to return to the UK to pursue them. The appellants challenged the withdrawal of their British citizenship arising from alleged membership of terrorist organisation.
Burnett LJ approved the ‘simple answer’ of SIAC in that case to the appellant’s argument that the timing of the deprivation order made it impossible for them to return, which was that there are two stages to the statutory process: the deprivation decision and the deprivation order and SIAC had no jurisdiction to consider an appeal against an order, let alone its timing. Burnett LJ noted that the orders were made when they were to prevent the appellants from travelling to the UK but that timing had nothing to do with potential appeals, rather, as in L1, they had been made to safeguard national security.
Briggs, Burnett, Lindblom LJJ
[2016] EWCA Civ 560
Bailii
British Nationality Act 1981 40
England and Wales
Cited by:
Cited – Begum v Special Immigration Appeals Commission and Others CA 16-Jul-2020
Return To UK to fight Citizenship Withdrawal
The appellant had, as a 15 year old, left to go to Iraq to be the ISIL terrorist group. She married an ISIL fighter and they had three children, the last one dying. Her citizenship of the UK had been withdrawn by the respondent leaving an . .
These lists may be incomplete.
Updated: 14 July 2021; Ref: scu.565679
Challenge to the lawfulness of the current policy of Her Majesty’s Passport Office to require those who apply for the issue of a passport to declare whether their gender is either male or female, and that a passport will only be issued bearing an ‘M’ (male) or ‘F’ (female) indicator in the sex field, rather than an ‘X’, indicating an unspecified sex.
Held: The Appellant’s non-gender identity did fall within the scope of the right to respect for private life protected by Article 8 ECHR, and the Appellant’s Article 8 right was therefore engaged. However, the Government’s continuing policy did not amount to an unlawful breach of that right and there was therefore no positive obligation on the Government to provide an ‘X’ marker on passports.
A literal reading of the language might lead the reader to conclude that the Appellant ‘is not concerned with gender identification at all’, but the judge rejected that notion, saying: ‘my understanding of what is intended to be conveyed by the use of this phrase is that the claimant is seeking to identify outside the binary concept of gender, rather than entirely rejecting the concept of gender altogether. Furthermore, not only does the current NHS definition of gender dysphoria recognise situations outside the accepted concept of transgenderism, (and the claimant’s hysterectomy was undertaken by the NHS), but it is clear from Kate O’Neil’s evidence that the GEO recognises that an individual’s gender identity includes, ‘. . male, female, both, neither or fluid.’
That being the case, in my judgment, the claimant’s identification is one relating to gender and I consider that it is one encompassed within the expression ‘gender identification’ in Van Kuck.’
‘Although at one time the terms ‘sex’ and ‘gender’ were used interchangeably (and confusingly still are on occasions), due to an increased understanding of the importance of psychological factors (albeit these may be due to differences in the brain’s anatomy), sex is now more properly understood to refer to an individual’s physical characteristics, including chromosomal, gonadal and genital features, whereas gender is used to refer to the individual’s self-perception.’
Jeremy Baker J
[2018] EWHC 1530 (Admin), [2018] WLR(D) 397, [2018] 4 All ER 519, [2018] 1 WLR 5119
Bailii, WLRD
European Convention on Human Rights 8
England and Wales
Cited by:
Appeal from – Elan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
Cited – FDJ, Regina (on The Application of) v Secretary of State for Justice Admn 2-Jul-2021
The Claimant challenged the lawfulness of the Defendant’s policies relating to the care and management within the prison estate of persons who identify as the opposite gender from that which was assigned to them at birth. In particular, she . .
These lists may be incomplete.
Updated: 04 July 2021; Ref: scu.618996
References: [2012] NIQB 75
Links: Bailii
Ratio: Application by chair of Inquiry for production of Hospital’s medical notes without the direct consent of the patients.
Held: The order was made.
Jurisdiction: Northern Ireland
Last Update: 01-Dec-16
Ref: 466477
References: (1985) 60 ALJR 113, (1985) 159 CLR 550, [1985] HCA 81
Links: Austlii
Coram: Gibbs CJ, Mason, Wilson, Brennan, Deane JJ
Ratio:(High Court of Australia) Immigration and Aliens – Deportation – Power of Minister – Principles of natural justice – Whether applicable – Standing as Australian citizen of infant daughter of aliens – Intended deportation order – Whether notice required – Migration Act 1958 (Cth), ss. 6, 6A, 7, 18.
Administrative Law – Decision – Natural justice – Procedural fairness – Order for deportation of aliens – Review of decision – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 13.
The court described the essence of procedural fairness. Mason J said: ‘In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations . .’
Brennan J stated: ‘a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise; . . the person whose interests are likely to be affected does not have to given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance . . nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit unconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information . .’
This case is cited by:
(This list may be incomplete)
Last Update: 13-Jul-16
Ref: 222098
References: [1999] EWCA Civ 3010, [2000] 1 WLR 354, [1999] 3 All ER 231, [2000] Imm AR 10, [1999] INLR 241
Links: Bailii
Coram: Lord Woolf MR
Ratio:An appellant failed to use the prescribed form for his appeal, contrary to the Immigration Appeals (Procedure) Rules. There had not been substantial compliance with the Rules, although the irregularity had been waived by the Tribunal. In any event the irregularity could have been cured by the Tribunal under the Rules.
Held: The application for leave to appeal was not to be treated as a nullity.
Lord Woolf MR said: ‘I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test: The questions which are likely to arise are as follows:
(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)
Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.’
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 05-Jun-16
Ref: 248202
References: [1851] EngR 722, (1851) 3 Mac & G 453, (1851) 42 ER 335
Links: Commonlii
Ratio A railway company was constituted in 1846 for the purpose of making a railway from A. to B., with a diverging line to C. In June 1851 the line of railway from A. to B. was nearly completed, but no steps had been taken to construct the diverging line, An information was then filed by the Attorney-General, at the relation of certain parties claiming to be interested in the diverging line, to restrain the company from opening the line from A. to B, except with the intention of oompleting also the diverging line. Held, upon demurrer, that the neglect by the company to complete the whole line could not be regarded in the light of a public injury so as to warrant the interference of the Attorney General.
Last Update: 01-Jun-16
Ref: 297038
References: Times 15-May-2001, 36337/97, 35974/97, (2002) 34 EHRR 529, [2001] 2 FLR 261, [2001] ECHR 295, [1999] ECHR 179
Links: Bailii, Bailii
Ratio The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were affected, the rules allowed application for their admission to the proceedings, and leave could also be sought to disclose the results of the proceedings to named parties. Custody and contact disputes were prime examples of situations where exclusion of the press and public could be justified to protect the interests of the child and parties to the case: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment . . to pronounce the judgment in public would, to a large extent, frustrate these aims.’ Parties were expected to be candid and open about events, and that would be threatened if proceedings were held in public.
Statutes: European Convention on Human Rights 6.1
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 17-May-16
Ref: 166087
References: Times 15-Dec-2001, [2001] EWHC Admin 1085, [2001] EWCA Civ 2015, [2002] IRLR 297
Links: Bailii, Bailii
Coram: Lord Justice Schiemann, Lord Justice Clarke, And, Mr. Justice Wall
The applicant sought to challenge a decision suspending him from authorisation to act as a financial adviser. He was alleged to have sought to affect the Index of share values in order that his company should not be liable under certain options. He said the decision was in effect a criminal decision.
Held: It was not a criminal charge. Applying the principles set out in Human Rights case law, the proceedings were not sufficiently serious to take the case to that point. Nevertheless some aspects of the right to a fair trial might apply under article 6. The appellant knew the basis of the allegation against him, and decisions made by him as to the conduct of his defence made the question of free legal representation irrelevant. Because the charge was not criminal evidence obtained under compulsion was admissible.
Schiemann LJ said: ‘It is common ground between the parties, and we are content to accept, that the Disciplinary Tribunal was involved in the determination of M Fleurose’s civil rights for the purposes of Article 6. Therefore clearly the proceedings had to be fair. We accept for present purposes, as did the judge, that it was for the SFA to prove their case, that the SFA had to inform M Fleurose in good time of the nature of the charges, that he must have adequate time and facilities to prepare his defence, a proper opportunity to give and call evidence and question those witnesses called against him. What fairness requires will vary from case to case and manifestly the gravity and complexity of the charges and of the defence will impact on what fairness requires. In this context we have born in mind, as did the judge, the points made by the Human Rights Court in Paragraphs 30 and 39 of Albert & Le Compte v Belgium, and in paragraphs 32 and 33 of Dombo Beheer BV v The Netherlands [1993] 18 EHRR 213.’
Statutes: European Convention on Human Rights Art 6
This case cites:
This case is cited by:
Last Update: 01-Oct-15 Ref: 167307
References: Times 31-Jan-1992
Coram: Pill J
The applicant sought to challenge the decision of the local authority to terminate his stallholder’s licence. The parties had agreed that a sufficient element of public law was involved to give the court jurisdiction to review the decision.
Held: It was not open to the parties to create jursidiction for the court. No sufficient element of public law was involved and a review was refused.
This case is cited by:
References: (1998) 194 CLR 355, [1998] HCA 28, (1998) 153 ALR 490, (1998) 72 ALJR 841, (1998) 8 Legal Rep 41
Links: Austlii
Coram: McHugh, Gummow, Kirby and Hayne JJ
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.”
This case is cited by:
References: [2014] EWFC 33
Links: Bailii, Jud
Coram: Sir James Munby P FD
The applicant’s father had been adopted. Both he and the adopting parents had since died. The applicant now sought disclosure of the records to reveal her the court record of her father’s adoption order.
Held: The order should be made.
Statutes: Adoption and Children Act 2002 79(4)
This case cites:
References: [2014] UKUT B8 (TCC)
Links: Bailii
UTTC PENSIONS REGULATOR – contribution notices – procedure – disclosure whether Applicant obliged to maintain legal professional privilege over documents passed to him by liquidator of sponsoring employer – no because employer dissolved – whether documents concerned not privileged as falling within the iniquity principle – no – disclosure permitted
References: PC/02/2006
Links: swarb.co.uk, statewatch
Coram: Sir Harry Ognall C, Boswell QC, Catchpole QC
The Mujaheddin-e-Khalq had been proscribed under the 2000 Act by the respondent. It now appealed against such proscription.
Held: The organisation had in the past used terrorist methods, but had repeatedly now renounced the use of violence. The proscription could not be upheld.
Sir Harry Ognall said: ‘We have reached the clear conclusion that the Secretary of State had reasonable grounds for believing that the PMOI was responsible for the attacks listed and, more importantly, to conclude that the PMOI had carried out many attacks over an extended period of time and that the examples set out in Mr Fender’s witness statement demonstrated the range and severity of the terrorist activities in which the PMOI had historically been involved.’ However, there had been a significant change in the MeK’s activities dating from June 2001 onwards, and that the MeK could no longer be said to be concerned with terrorism within the meaning of section 3 of the Terrorism Act.’
Statutes: Terrorism Act 2000 3(3)(b)
This case is cited by:
References: Gazette 19-Jan-1994, Times 27-Oct-1993, Independent 26-Oct-1993, [1994] 1 WLR 621
Parliamentary Commissioners decisions are reviewable, but range of the discretion given to him by the Act is very wide, and his decisions will only rarely be susceptible to review. He is answerable to Parliament.
Statutes: Parliamentary Commissioner Act 1967
This case is cited by:
References: [1767] EngR 55, (1767) 3 Bro CC 646, (1767) 29 ER 743
Links: Commonlii
Coram: Lord Camden LC
Ratio Review was sought of a decree pronounced some thirty or forty years before. The defect was apparent on the face of the record.
Held: The review was barred by the length of time elapsed.
Ratio Lord Camden LC applied the doctrine of laches, saying: ‘A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing.’ Equity would not countenance laches beyond the period for which a legal remedy had been limited by statute, and that where the legal right had been barred, the equitable right to the same thing was also barred: ”Expedit reipublicae ut sit finis litium’, is a maxim that has prevailed in this court at all times, without the help of parliament.
But, as the Court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances.
But as often as parliament had limited the time of actions and remedies, to a certain period, in legal proceedings, a Court in Chancery adopted that rule, and applied to similar cases in equity.
For when the Legislature had fixed the time at law, it would have been preposterous for equity (which, by its own proper authority, always maintained a limitation), to countenance laches beyond the period, that law had been confined to by parliament.
And therefore in all cases where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar.’
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This case is cited by:
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Last Update: 25-Mar-16
Ref: 374834