Court Circular Autumn 2020 Edition

Court Circular Autumn 2020 > Welcome

Welcome to the Autumn 2020 edition of Court Circular.Court Circular is our regular publication examining the latest relevant judgments and what they mean to you. Full judgments of some of the claims featured may be found at http://www.bailii.org/.

Readers can go directly to any article simply by clicking on the heading in the contents list on the next page. Claims involving our customers are clearly marked in the subject heading. At the top of each page icons may be used to contact us, to email the publication to a colleague, to navigate, and to print.

Welcome to the Autumn edition of our Court Circular. The weather is now cooling as Autumn sets in and in the last few days we’ve seen yet more changes with a further lockdown initiated in England alongside the continued restrictions in Wales and Scotland.I am reminded of Eleanor Roosevelt’s words – “If life were predictable it would cease to be life and be without flavour”. One day, in hopefully the not so distant future, we will look back on this time and remember the positives – spending more time at home, taking up new hobbies, and valuing those we love.I’ve recently been reviewing with interest the results of a Zurich commissioned survey looking at the impact of COVID-19 on our customers. The survey called out key themes that I am sure a number of us have been experiencing, such as the challenges of working from home, with increasing workloads for over half of those surveyed and almost three quarters of customers providing new services as a result of COVID-19. I felt so proud to read the feedback from customers on the support Zurich has provided and wanted to take the opportunity to remind you of the FAQ page on our website which is regularly updated with the latest advice. Our team is also available to answer any questions you have about insurance matters during this time of rapid change and uncertainty.The Courts have remained active over early Autumn. The much anticipated decision in Swift v Carpenter was handed down by the Court of Appeal, providing a new calculation in respect of accommodation awards for claimants who have suffered a personal injury. Another significant judgment we mention in this quarter’s edition is Taylor v Jaguar Land Rover Ltd, where the Employment Tribunal ruled that gender fluid/non-binary employees are protected under the Equality Act 2010. And in Scotland, the Court of Sessions concluded that the use of WhatsApp messages to bring disciplinary proceedings against police officers did not breach the officers’ art.8 rights.On behalf of the team at Zurich, I want to send our best wishes to you and your family.Keep safe and well.Amy Brettell

Amy BrettellHead of Customer, UK Claims.

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Court Circular Autumn 2020 > Contents

Contents Discrimination

The tribunal held that a gender-fluid/non-binary employee was covered by the definition of gender reassignment in the Equality Act 2010 Taylor v Jaguar Land Rover Ltd 14 September 2020, Employment Tribunal ................................................................. 5

Gross Negligence ManslaughterNo expert evidence of causation should have led to case being withdrawn from jury R v Ceon Broughton 18.08.2020, Court of Appeal (Criminal Division) ......................................................... 6

HousingClaims in connection with remedial works on defective leasehold properties were statute-barred and a tort claim was struck out as losses had been purely economic and therefore irrecoverable Sportcity 4 Management Ltd v Countryside Properties (UK) Ltd 17.06.2020, Queen’s Bench Division (Technology and Construction Court) ................. 7

Civil ProcedureThe Court declined to depart from the general rule under CPR r.46.1 that the party making an application for pre-action disclosure paid the costs of the application Rexway Home Ltd v Buckinghamshire Council 11.09.2020, Queen’s Bench Division ........................................................................... 8

The Court of Appeal overturned a decision to strike out a £2.2m personal injury claim, despite concluding it was issued inappropriately and there had been an abuse of process Cable v Liverpool Victoria Insurance Limited 31.07.2020, Court of Appeal ...................................................................................... 9

Judge made mistake in not finding Claimant had been fundamentally dishonest Pegg v Webb 31.07.2020, Queen’s Bench Division ......................................................................... 10

Request for further expert report where two already existed was denied by the Court Domeney v Rees & Another 28.07.2020, Queen’s Bench Division ......................................................................... 11

Claimant not permitted to use a Covid-19 related adjournment to her advantage to instruct a new expert, as she already had obtained an expert report before the adjournment Ludlow v Buckinghamshire Healthcare NHS Trust and another 06.05.2020, Queen’s Bench Division ........................................................................ 12

Representative elements of a claim by individuals and communities following an oil spill off the coast of Nigeria were struck out Harrison Jalla & Ors v (1) Royal Dutch Shell Plc (2) Shell International Trading & Shipping Co Ltd (3) Shell Nigeria Exploration & Production Co Ltd 14.08.2020, Queen’s Bench Division (Technology and Construction Court)............... 13

PoliceThe use of automated facial recognition technology in a pilot project by the South Wales Police Force was not “in accordance with the law” for the purposes of ECHR art.8(2) R (on the application of Edward Bridges) v the Chief Constable of South Wales Police & Ors 11.08.2020, Court of Appeal.................................................................................... 14

HighwaysA challenge to a decision not to impose a traffic regulation order that would have stopped green lanes in the Langdale area of the Lake District being used for off-road driving was rejected Stubbs (on behalf of Green Lanes Environmental Action Movement) v Lake District National Park Authority & Ors 21.08.2020, Queen’s Bench Division......................................................................... 15

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InjunctionsAn interim injunction was extended prohibiting persons unknown from organising, attending, or participating in amplified music events at a communal area on a housing estate Wandsworth London Borough Council v Persons Unknown 14.07.2020, Queen’s Bench Division ......................................................................... 16

NegligenceThe Court refused to strike out claim against social services for not removing a child at risk of abuse, even when that child a) was not in custody and b) there was no averment that social services had made matters worse A Claimant v Surrey County Council 26.06.2020, County Court (Central London) ............................................................. 17

A roofer who had suffered a severe head injury and other serious injuries after a fall at work did not have the capacity to litigate his negligence claim or manage and control any award made by the Court King (A Protected Party By His Litigation Friend, Susan Rummey) v Wright Roofing Company Ltd 07.08.2020, Queen’s Bench Division ......................................................................... 18

People who require special accommodation after suffering a personal injury will receive fair and reasonable compensation to purchase a property Swift v Carpenter 09.10.2020, Court of Appeal .................................................................................... 19

DefamationAn apology regarding a story published in a newspaper was not defamatory towards the writer of the original article Burleigh v Telegraph Media Group Ltd 02.09.2020, Queen’s Bench Division ........................................................................ 20

Scotland – PoliceThe use of WhatsApp messages to bring disciplinary proceedings against police officers did not breach ECHR Article 8 privacy rights BC and others v Chief Constable Police Service of Scotland and others 24.09.2020, Court of Sessions (Inner House) ............................................................ 21

Scotland – NegligenceDefender owed a duty of care to a milkman who was injured when delivering milk to the Scottish National Portrait Gallery in Edinburgh Wright v National Galleries of Scotland 27.08.2020, Sheriff Appeal Court ............................................................................. 22

Northern IrelandA High Court judge stated that the delay in implementing the Troubles pension could not be tolerated and Deputy First Minister was ignoring the rule of law by blocking progress on the pension scheme McNern (Jennifer) and Turley’s (Brian) Application 21.08.2020, Queen’s Bench Division (Belfast) ........................................................... 23

Court Circular Autumn 2020 > Contents

Contents (continued)

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Court Circular Autumn 2020 > Discrimination

Taylor v Jaguar Land Rover Ltd, 14 September 2020, Employment Tribunal

Snapshot The tribunal held that a gender-fluid/non-binary employee was covered by the definition of gender reassignment in the Equality Act 2010.

In-depth The Employment Tribunal upheld claims of harassment, direct discrimination and victimisation on the ground of gender reassignment brought by the Claimant, C who identified as gender fluid/non-binary. C stated that they suffered insults and abusive jokes at work, had difficulties with the use of toilet facilities and managerial support was not forthcoming.

Under section 7 of the Equality Act 2010, a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing, or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. The question of whether a gender-fluid/non-binary person was covered by section 7 was a novel area of law. The Employment Tribunal ruled that they were.

DISCRIMINATION

Comment

This is a significant development in discrimination law. The written decision has yet to be released; however, we will ensure that it is covered in a subsequent issue of this publication.

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Court Circular Autumn 2020 > Gross Negligence Manslaughter

R v Ceon Broughton, 18.08.2020, Court of Appeal (Criminal Division)

Snapshot In a gross negligence manslaughter appeal, the Appellant had his conviction overturned. In a case covered widely by the media, the rapper’s girlfriend died after taking the drug 2C-P at the Bestival music festival in September 2017. His conviction and a seven-year prison sentence was quashed by the Court of Appeal on the grounds of insufficient evidence to meet the criminal standard of proof. Lord Burnett said the expert evidence on the likelihood of the deceased’s chances of survival had she received treatment sooner was “not capable of establishing causation to the criminal standard”.

In-depth The Appellant, A, attended the Bestival music festival with his 24-year-old girlfriend, G, in 2017. He provided her with 2C-P, a Class A drug and “bumped” it up, either by giving her an increased dose or mixing it with ecstasy or ketamine. At 16.30pm, the couple left the main festival ground and went to a nearby woodland. G had a negative reaction to the drugs. A videoed her on his phone at her request, beginning at 17.53. At 19.13 and again at 20.25, he asked for someone to get a doctor. A gave the wrong name of the woodland they were in and medical staff went to the wrong location.

G died at 23.35pm. The prosecution contended that as A had supplied G with the drugs and remained with her whilst her condition deteriorated, he owed her a duty of care to summon timely medical assistance. A’s failure to do this was argued to be a substantial cause of G’s death. The Prosecution’s resuscitation expert, D, described G as being “seriously unwell and in need of urgent medical care” by 20.18 pm. He concluded that she would have stood a 90% chance of survival with medical intervention at 21.10 pm.

A stated at the end of the hearing of evidence that he had no case to answer. Regarding causation, he argued that D was unable to rule out that G would have died even if she had received timely medical treatment. The judge rejected the submission of no case to answer and declined A’s request to give a further direction to the jury that, even taken at its highest, D’s evidence was that there was a 10% possibility that medical intervention could never have saved G’s life; therefore, A was entitled to be acquitted unless there was evidence to fill the gap between that and the jury being sure that any breach of duty by him had caused or significantly contributed to G’s death.

On appeal, A submitted that the judge’s direction to the jury did not make it clear

that, in a case concerning a negligent lack of medical attention, to establish that a breach of duty was a significant cause of death, the prosecution had to prove beyond reasonable doubt that the person concerned would have lived. The Prosecution relied on R. v Sellu (David) [2016] EWCA Crim 1716, [2017] 4 W.L.R. 64, [2016] 11 WLUK 402, and argued that the correct test was whether the jury was sure that the negligence deprived the victim of a significant or substantial chance of survival that was otherwise available at the time of the negligence.

The Court of Appeal stated that in homicide cases, the test for causation was that the Defendant’s negligence was a substantial cause of death. There was no need to establish the Defendant’s breach of duty was the sole or principal cause of the fatality. The Court rejected Sellu, because in gross negligence manslaughter cases, the Prosecution had to prove to a criminal standard that the deceased’s life would had been prolonged but for the Defendant’s negligence.

Being “sure” was not the same as a scientific certainty. To be sure that the gross negligence caused the death, the Prosecution had to exclude realistic or plausible possibilities that the deceased would have died anyway. Therefore, to establish A’s guilt, the Prosecution had to persuade the jury that, at the time when G’s condition was such that there was a serious and obvious risk of death, A was grossly negligent in failing to get medical assistance and that such assistance would have saved her life.

D’s opinion of a 90% chance of survival at 21.10, with medical help, left a realistic possibility that G would have survived. Thus, the evidence was not capable of establishing causation to the criminal standard and the case should have been withdrawn from the jury.

GROSS NEGLIGENCE MANSLAUGHTER

Comment

No retrial for manslaughter was ordered by the Court of Appeal; however, the conviction for supplying a Class A drug remained in place. This case shows the high standard of proof needed to prove gross negligence manslaughter, which is in no way ‘less than’ what it would be for any other criminal conviction.

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Court Circular Autumn 2020 > Housing

Sportcity 4 Management Ltd v Countryside Properties (UK) Ltd, 17.06.2020, Queen’s Bench Division (Technology and Construction Court)

Snapshot Claims against the original developer in connection with remedial cladding works on defective leasehold properties were statute-barred and a tort claim was struck out as losses had been purely economic and therefore irrecoverable.

In-depth The Claimants, C, were the management company of a Manchester residential development called Sportcity Living, which comprised of 350 apartments. The Defendant, D, was the original developer that constructed the complex. The local authority was the freehold owner of the land, leasing them to a development company (AMEC). AMEC subdemised the individual apartments by a series of underleases to which the Defendant and the relevant Claimant were parties.

The parties agreed to proceed on the basis that completion of the complex occurred in 2010. It was also agreed that in 2014 and 2017, D attended the complex and undertook some works in 2014 which arose from alleged problems with the buildings’ external cladding.

C issued Court proceedings for issues related to defective cladding and other fire-related defects in 2019, seeking damages of over £15 million for the estimated costs of the re-cladding works (plus approximately £840,000 in relation to cavity barrier and fire stopping works). The claim was based on three causes of action:

a) a claim under the Defective Premises Act 1972, section 1,

b) a claim that D breached a duty of care it owed to C, and

c) on the proper construction of the sub-leases, D was the landlord under them; therefore, it owed (and had breached) certain obligations to C or, alternatively, that D was responsible for ensuring compliance with such obligations.

As the application was a strikeout application, the question for the Court was whether C’s claim had a realistic prospect of success.

The Court held that the claim concerning sub-leases was completely untenable. Regarding the claim under the Defective Premises Act 1972, it was agreed that the limitation period (six years after the date the works were completed) had expired. However, C argued that because D had undertaken remedial works in April 2014 (and re-attended and failed to undertake works in 2017), the limitation period should recommence in 2014. C relied on s1(5) of the Defective Premises Act 1972, which states that if, after completion, further work is undertaken to rectify the previous work, any such cause of action in respect of this further work accrues at the time the further work was finished.

It was concluded that although s1(5) provides for a fresh cause of action to be commenced on work carried out after completion, it does not resuscitate a statute-barred claim. Therefore, the remedial works could not be relied on to override the bar on claiming on the original construction.

HOUSING

Comment

Following the Grenfell Tower tragedy, many cases are being brought before the Courts to establish who needs to pay for expensive re-cladding works. This case illustrates the limitations of the Defective Premises Act 1972 when it comes to trying to recover damages from the original builder. Therefore, early assessment and evaluation must be quickly undertaken to establish if rights to make a claim exist.

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Court Circular Autumn 2020 > Civil Procedure

Rexway Home Ltd v Buckinghamshire Council, 11.09.2020, Queen’s Bench Division

Snapshot The Court declined to depart from the general rule under CPR r.46.1 that the party making an application for pre-action disclosure paid the costs of the application.

In-depth The Claimant, C, applied for costs for its application of pre-action disclosure against the Defendant, D.

C provided support and accommodation to young people leaving care. D had a statutory responsibility for the youths and contracted C to undertake the services provided.

In February 2020, alleging serious breach of contract due to criminal allegations made against C, D terminated its contract. C denied the allegations and accused D of spreading rumours relating to those allegations to other local authorities, resulting in them not placing youths in C’s care.

C sought disclosure of D’s communications to other local authorities. At first D refused, denying defamation, and claiming that such disclosure would prejudice the criminal case against C. However, before the hearing, D provided limited disclosure.

C argued that it had been successful in its application and the local authority had responded unreasonably to its request for pre-action disclosure so that the Court should disapply the general rule in CPR r.46.1. Rule 46.1 states that for applications under ss 33 and 34 of the Senior Courts Act 1981 and ss 52 and 53 of the County Courts Act 1984, generally “the court will award the person against whom the order is sought that person’s costs of the application and of complying with any order made under the application.”

The Court held that nothing in the overall circumstances persuaded the Court that an exception should be made to r.46.1, especially given that C had failed to bring the matter to D’s attention until a week before the hearing. C was, therefore, obliged to pay D’s application costs.

CIVIL PROCEDURE

Comment

It is worthwhile noting that the Court commented that D could have responded more specifically to C’s disclosure request.

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Cable v Liverpool Victoria Insurance Limited, 31.07.2020, Court of Appeal

Snapshot The Court of Appeal overturned a decision to strike out a £2.2m personal injury claim, despite concluding it was issued inappropriately and there had been an abuse of process. It was concluded that if the claim was struck out, the accident victim would have to start his claim from scratch, this time with a professional negligence claim against his solicitors. To avoid this, the Court chose to penalise the Appellant’s solicitors with an adverse costs order covering litigation dating back several years.

In-depth The Appellant, A, suffered injuries following a road traffic accident (RTA) in September 2014. He instructed Solicitors to undertake a whiplash claim. It was not immediately apparent that the claim was worth more than £25,000 for the purposes of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTA Protocol).

The Respondent, R, admitted liability. Due to developing tinnitus, A could not return to work. Due to the slowness of his Solicitors, A’s claim did not proceed.

The Court of Appeal made a number of criticisms of A’s Solicitors over the conduct of the claim. Progress following an interim £1,000 payment was ‘non-existent’ for more than two years, despite R’s lawyers continually chasing for information about what was happening. No reply was made to any of these requests, and communication was so poor that R’s Solicitors did not even inform R when A lost his £130,000-a-year job in December 2015.

R’s Solicitors were not provided with a copy of a doctor’s report, which described A’s condition as having become chronic, until August 2018 – at least a year after it became clear the claim was worth far more than £25,000 and a change in strategy was required.

A’s claim form, which included the request for a stay of proceedings in line with the RTA protocol, was ‘misleading in a number of important respects’ – not least because it was clear by this stage that the claim was not suitable for the lower value protocol.

Delivering the judgment, Lord Justice Coulson agreed that the move to the higher value personal injury protocol could quite possibly be an abuse of process. He concluded that at the point A’s Solicitors issued the claim under Part 8, they knew or ought to have known this was not a Part 8 claim. However, the claim should be allowed to continue. This was because even if the right protocol was used, nothing significant would have changed (although it was acknowledged a year had been lost).

Comment

The appeal was allowed. The Appellant was ordered to pay the Respondent’s costs on an indemnity basis up to and including October 2018. The Court also ruled that the Appellant was disentitled to any interest on his special damages up to that point.

Court Circular Autumn 2020 > Civil Procedure

CIVIL PROCEDURE

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Pegg v Webb and another, 31.07.2020, Queen’s Bench Division

Snapshot At trial, the judge found the Claimant had not been fundamentally dishonest about injuries he had suffered following a car accident. On appeal, the Court concluded the Claimant had, in fact, been fundamentally dishonest regarding the circumstances surrounding his injuries and ordered him to pay 70% of the Defendant’s costs.

In-depth The Claimant, C, was the passenger in the front seat of a motor vehicle which collided with the Defendant’s, D, car. D was fully responsible for the collision. C brought a claim for soft tissue injuries to his neck, elbow, and left knee, plus physiotherapy charges of £426. At trial, C relied on a medical report which stated the injuries would resolve themselves in six months from the accident.

D’s insurer (who was the second Defendant in the case), argued that C’s claim was bogus and the accident never occurred. Furthermore, even if the collision did happen, C had exaggerated his injuries and lied to the medical expert who prepared the report.

The judge at first instance concluded that a collision had occurred. However, he found that C had failed to mention to the medical expert that he had suffered a quad bike accident one month after the collision, and C’s claims to the medical expert regarding the longevity of his injuries were inconsistent with his statements at trial. Therefore, no reliance could be placed on the medical report and the claim had to fail. However, no finding of fundamental dishonesty was made and D was ordered to pay 60% of C’s costs.

The Court found that at his medical examination for the whiplash injuries in August 2016, C “deliberately failed” to tell the medical expert about falling off the quad bike “in order to mislead [him] about the effects of the car accident”.

Two “positive lies” were told by C to the doctor: a) that he continued to feel the effects of whiplash injuries to his neck, and B) he was still having physiotherapy.

Justice Spencer stated – “The claimant then compounded the dishonesty towards Dr Shakir by lying about the longevity of the injuries in the claim form and his witness statements and, even worse, adopting Dr Shakir’s description of the injuries and prognosis of six months’ recovery when he knew that Dr Shakir had been misled by him into giving this prognosis.”

The judge went on: “In my judgment, on the basis of the above, no judge could reasonably have failed to have come to the conclusion that the claim for damages as presented by the claimant in this action was a fundamentally dishonest one, perpetrated by fundamentally dishonest accounts to the only medical expert and in the various court documents.”

C was ordered to pay 70% of the second Defendant’s costs on the indemnity basis, reducing this from 100% because a “significant part of the evidence and court time” at the earlier hearing was spent determining whether the accident was bogus or the result of collusion.

Comment

This decision shows how silence can constitute fundamental dishonesty in a personal injury case. The fact that C did not inform the medical expert about the quad bike accident and that he had suffered injuries and attended A&E following that accident constituted fundamental dishonesty.

Court Circular Autumn 2020 > Civil Procedure

CIVIL PROCEDURE

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Domeney v Rees & Another, 28.07.2020, Queen’s Bench Division

Snapshot A request for further expert report where two already existed was denied by the Court.

In-depth The Claimant’s, C’s, husband had been riding his motorbike on a single laned, 60mph road. He was killed instantly when the Defendant, D, turned right into a minor junction in front of him, causing his bike to collide with D’s car.

D was convicted of causing death by careless driving whilst being under the influence of a Class C drug.

The issue before the Court was one of contributory negligence. Although there were no witnesses to the accident, three people had seen the deceased driving over the speed limit before the fatal crash. Two accident reconstruction reports were prepared, but both experts stated that they could not reliably estimate the speed of the motorbike; there were no skid marks on the road, and when the deceased was thrown from the bike he struck a fence, so his trajectory could not be calculated. D wished to adduce two further expert reports, one from another accident reconstruction expert and one from an A&E consultant.

Under the Civil Procedure Rules, Part 35, the test was whether the expert evidence was reasonably required to resolve the proceedings. D failed to meet this test. Two expert reports had already stated that they could not reliably conclude the deceased’s speed at the time of the accident. There was no reason to believe another expert would come to a different conclusion.

The Court would have to reach conclusions as to speed based on the lay witnesses’ evidence. This situation was not unusual. If there was no sufficient forensic evidence from which conclusions could be drawn, expert evidence was redundant. Although an accident reconstruction expert could put forward alternative scenarios, their conclusions would be based on speculation. Therefore, the appeal was refused.

Comment

The Court concluded that it would be highly undesirable to try and establish the delicate question of contributory negligence on speculation. This case illustrates how difficult it can be to establish the facts of an unwitnessed road traffic accident, especially a fatal one.

Court Circular Autumn 2020 > Civil Procedure

CIVIL PROCEDURE

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Ludlow v Buckinghamshire Healthcare NHS Trust and another, 06.05.2020, Queen’s Bench Division

Snapshot The Claimant was not permitted to use a Covid-19 related adjournment to her advantage to instruct a new expert, as she already had obtained an expert report before the adjournment.

In-depth The Claimant, C, brought a claim for clinical negligence against the Defendant, D, an NHS Trust. The trial was listed for 11 May 2020 and on 30 April C made an application for an adjournment.

C’s initial expert report was written in 2017 but the expert had since died in December 2019, so she sought to rely on a new expert report, which was disclosed on 29 April 2020. C also sought to amend the Particulars of Claim.

The Court granted the application for adjournment as the judge agreed the trial could not take place remotely. However, the application to amend the Particulars of Claim was refused.

“In my judgment, the application to amend is extremely late; no good reason has been advanced for the delay; and the claimant is not entitled to benefit from the adjournment of the trial next week for reasons unconnected with the application.”

Regarding the new expert report, the Court acknowledged that C was in an awkward situation in that the expert who had seen her in person was dead and the new expert had not seen her. In the instant circumstances, the criteria in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926, [2014] 7 WLUK 202 had to be applied when considering whether to adduce the evidence of a new expert. The Court ruled that although it would be difficult not to have the original expert in Court, C would still have the benefit of the original expert report. She could not use the intervening period of adjournment to her advantage to instruct a new expert.

Comment

The parties agreed to adjourn the original proceedings because a trial during lockdown would have placed additional stress on NHS resources and clinicians. This case makes clear that even in these unusual times, and with the Courts experiencing an unprecedented backlog of cases, Denton principles will still apply.

Court Circular Autumn 2020 > Civil Procedure

CIVIL PROCEDURE

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Harrison Jalla & Ors v (1) Royal Dutch Shell Plc (2) Shell International Trading & Shipping Co Ltd (3) Shell Nigeria Exploration & Production Co Ltd, 14.08.2020, Queen’s Bench Division (Technology and Construction Court)

Snapshot Representative elements of a claim by individuals and communities following an oil spill off the coast of Nigeria were struck out. Although there were some common issues of law and fact, they were not sufficient to satisfy the requirement that the multiple parties had “the same interest” within the meaning of CPR r.19.6. This was because of individual differences regarding damage suffered and limitation issues.

In-depth The two lead Claimants, C, brought claims against the Defendants, D on behalf of 27,830 individuals and 479 communities said to be affected by an oil spill. The claim sought for D to carry out remedial work or pay the value of such work to C and pay damages.

Under CPR r.19.6, a claim may be begun or continued by or against one or more persons as representatives of any others who have the “same interest” in the claim. This type of “representative” action proceeds on an opt-out basis. Therefore, the represented class do not need to be joined as parties to the action or even to be identified on an individual basis.

The question for the Court was whether C had the ‘same interest’ as those they purported to represent.

Justice Stuart-Smith, after reviewing the authorities, held that the ‘same interest’ representative parties must have a common interest relating to a shared grievance, and any relief obtained should benefit all parties. It was held that this particular claim was unsuitable for representative action as although the individual Claimants had a common cause of action in fact and law in terms of the oil spill, each would have to prove that the spill caused them damage as they had all been affected at different times and to differing degrees. These individual claims were not, as C tried to argue, ‘subsidiary’; each individual claim was just as important as the proposed representative action in fact and law.

Comment

This case demonstrates the very restricted circumstances in which a CPR r.19.6 representative action can be taken. Although Claimants may, at first glance, seem to have common grounds in law and fact, on closer examination, the intricacies of their claims diverge. And even if representative action is brought to establish one element of a claim, for example, liability, separate actions are often required to recover damages or other remedies. And even though liability can be relied on because of the representative action, some of these individual claims may fail due to issues such as limitation periods and causation.

Court Circular Autumn 2020 > Civil Procedure

CIVIL PROCEDURE

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Court Circular Autumn 2020 > Police

R (on the application of Edward Bridges) v the Chief Constable of South Wales Police & Ors, 11.08.2020, Court of Appeal

Snapshot The use of automated facial recognition (AFR) technology in a pilot project by the South Wales Police Force was not “in accordance with the law” for the purposes of ECHR art.8(2). Furthermore, the Data Protection Impact Assessment was inadequate and not compliant with the Data Protection Act 2018 (‘DPA’), Part 3, Section 64 (3); and the respondent had not taken reasonable steps to investigate whether the technology had a racial or gender bias, as required by the Public Sector Equality Duty.

In-depth AFR technology involves using surveillance cameras to capture images of people in public. The images are then compared with those of people on a watch list. If the images match, a police officer will further examine them to see if an actual match has been made. If a match is made, police officers nearby will be notified and can intervene if necessary.

If no machine AFR match is made, the images are automatically deleted.

The South Wales Police Force was trialling the use of AFR technology. The Appellant, A, had challenged the lawfulness of AFR generally, and specifically regarding two occasions when his own image had been captured.

The Divisional Court found for the Respondent, R, stating that although art.8 was engaged, any interference was justified in accordance with art.8(2). Regarding breaching the requirements of the Data Protection Act 2018, section 64, the Court held that whilst the obtained was personal and sensitive, it was processed lawfully and fairly and that the impact assessment prepared by R met the section 64 requirements.

A appealed. The Court of Appeal ruled that the use of AFR did not satisfy the requirements of art.8(2). R’s policies were inadequate because they did not clearly define who could be placed on a watch list or the criteria for when AFR could be used. Therefore, it was held that the policies did not sufficiently set out the terms of discretionary powers exercised by the police and for that reason, the use of AFR was not in accordance with the law.

Because the Data Protection Impact Assessment (DPIA) proceeded on the assumption that art.8 rights were not engaged, the risks relating to the rights and freedoms of the data subjects could not have been rigorously evaluated. The DPIA also failed to address the measures envisaged to mitigate the risks arising from the identified deficiencies, as required by section 64 of the Data Protection Act 2018.

Regarding R’s public sector equality duty, the Court found that R did not investigate whether AFR could be biased against certain races or gender. The duty under section 149 of the Equality Act 2010 was to ensure a public authority did not consider important information. Racial and gender bias concerning AFR was clearly important if it was found, therefore, R failed in its statutory duty.

POLICE

Comment

This case provides an excellent analysis of public authorities’ duties under section 64 of the Data Protection Act 2018 and section 149 of the Equality Act 2010. It also provides guidance for what needs to be determined to establish a defence under art.8(2) of the ECHR.

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Court Circular Autumn 2020 > Highways

Stubbs (on behalf of Green Lanes Environmental Action Movement) v Lake District National Park Authority & Ors, 21.08.2020, Queen’s Bench Division

Snapshot A judicial review challenge to a decision not to impose a traffic regulation order that would have stopped green lanes in the Langdale area of the Lake District being used for off-road driving was rejected. The Court concluded that something more than mere unmanaged conflict was needed to engage the National Parks and Access to the Countryside Act 1949, s.11A(2). Conflict that was acute, unresolvable, or irreconcilable would trigger its operation.

In-depth The Claimant, C, a campaign group called Green Lanes Environmental Action Movement, sought judicial review of a decision by the Defendant, D, not to impose a traffic regulation order (TRO) in respect of two green lanes within the national park. Cumbria Council – the highway authority for the two highways known as Tilberthwaite Road and High Oxen Fell Road – was the first interested party (FIP).

The green lanes in question could be used by motor vehicles and pedestrians. Parts of the lanes were unsurfaced, and over time they had deteriorated. The deterioration became so extensive that eventually, agricultural vehicles could not access farms off the lanes. D was asked by C to make a TRO prohibiting motor vehicles from using the unsurfaced parts of the lanes. D investigated the request and produced a long-term management solution.

D also produced an assessment report which noted that the National Parks and Access to the Countryside Act 1949 s.5 enabled areas to be designated as national parks for the purposes of conservation and promoting public enjoyment. The report suggested that, when deciding how to exercise its powers in respect of the national park, D had to have regard to the “Sandford principle” enshrined in s.11A(2) of the Act which states: “Where irreconcilable conflicts exist between conservation and public enjoyment, then conservation interest should take priority”.

The decision was challenged on three grounds: 1) D had not properly interpreted and applied s.11A(2), 2) D failed to discharge the duty upon it under section 122 of the Road Traffic Regulation Act 1984, and failed to make a decision based upon the relevant mandatory considerations which needed to be taken into account under the TRO procedure and 3) misdirected the committee as to when a consultation on a TRO under the National Park Authorities’ Traffic Orders (Procedure) (England) Regulations 2007 reg.4 could be held.

The Court concluded that s.11A(2) was correctly interpreted and applied after it had examined the statutory framework. It was clear that Parliament’s intention when drafting s. 5 was to protect the environment and promote public enjoyment, and there was no justification for putting one before the other. However, if a national park authority judged that a situation involving a conflict between those two purposes could not satisfactorily be mediated through management or stewardship and that both could not satisfactorily be accommodated, s.11A(2) made it clear that conservation had to be given the greater weight.

For s.11A(2) to be triggered, the Court held that the situation had to be more than simply an unmanaged conflict. D would have to make a value judgment as to what would trigger the section.

Regarding D’s duty under s. 122 of the Road Traffic Regulation Act 1984, the Court concluded that it was too early in the process for the section to be engaged. For the section to be engaged, D would have had to consulted on the matter in detail and considered the responses.

Regarding the issue of consultation, the Court stated that the author of an assessment report did not have to provide information about every form of consultation exercise that might conceivably be undertaken.

HIGHWAYS

Comment

C is considering an appeal. It told The Local Government Lawyer:

“We are of course disappointed in the judgment, but it does not change the fundamental issue, which is that off-roading in Little Langdale is damaging the natural beauty of this part of the National Park, and that the LDNPA is refusing to stop the damage, even though it has ample powers to do so. Today’s judgment does not change the fundamental issue. GLEAM will be continuing to support the local campaign to get the LDNPA to make TROs on these two tracks.”

@us @colleague 15

Court Circular Autumn 2020 > Injunctions

Wandsworth London Borough Council v Persons Unknown, 14.07.2020, Queen’s Bench Division

Snapshot An interim injunction was extended prohibiting persons unknown from organising, attending, or participating in amplified music events at a communal area on a housing estate. The injunction was sought after a large gathering had occurred and there were fears another was being planned. As part of the extension, the power of arrest was removed as were the restrictions on the sale of alcohol and food and leaving of rubbish.

In-depth The Claimant, C, was applying for an extension to an interim injunction and power of arrest concerning land in which it was the freehold owner.

On 20-21 June, an amplified music event staged on the land amounted to a public nuisance and threat to public health, as there were drugs, alcohol and bonfires and the car parks and fire exits were blocked. This followed a similar event in June 2019. A further event was scheduled for 27 June, with a significant risk to others if the behaviour was not restrained. The estate’s manager had recorded the residents’ complaints and fears for their safety. C was unable to identify the event’s organisers as it had been advertised on social media.

An interim injunction was granted, prohibiting persons unknown from organising, attending or participating in gatherings involving the playing of amplified music on the land and imposed restraints on the lighting of fires or barbeques, the sale of alcohol and food, the leaving of litter, or damage to trees, with a power of arrest attached to everything except the leaving of litter.

A return date was set for July 2020 and a review hearing for June 2021.

The Court ruled that the prohibition on organising, attending or participating in gatherings involving the playing of amplified music in the interim injunction should continue. The events in 2019 and 2020 had caused nuisance, annoyance and distress to the estate’s residents and there was a continuing sufficient, real and imminent risk that similar events would continue in the absence of the relief. Any negative impact on ECHR in relation to freedom of expression and freedom of assembly had to be proportionate in relation to the interests of affected residents. In this case, continuation of the injunction was deemed proportionate.

The power of arrest was not renewed as, given the existing order had been complied with, the condition of a significant risk of harm was not met.

Review was set for March 2021.

INJUNCTIONS

Comment

As we move into winter and police and local authorities have to prevent people gathering in groups of more than six, the granting of injunctions for cases such as this will do much to help with a fairly onerous task.

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Court Circular Autumn 2020 > Negligence

A Claimant v Surrey County Council, 26.06.2020, County Court (Central London)

Snapshot The Court refused to strike out a claim against social services for not removing a child at risk of abuse, even when that child a) was not in custody and b) there was no formal positive statement of fact (averment) that social services had made matters worse.

In-depth The Defendant social services, D, became involved with the Clamant, C, following a hospital referral for a non-accidental injury. Pursuant to their statutory duties under the Children Act 1989, D carried out two core assessments in 2004 and a further core assessment in 2005. The file on C was closed in September 2005.

C’s step-father was later convicted of 30 specimen counts of rape against C and his brother in the period 2004 to 2010. C brought a claim in negligence against D stating that if D had carried out its assessments with reasonable care and skill, C would have been removed from the family home no later than mid-2006, thus avoiding all subsequent abuse by the step-father.

In Court, it was accepted that D’s intervention had not made matters worse. However, because D made a positive intervention, a special relationship, and therefore an assumption of responsibility, had developed between C and D. Therefore, C was entitled to rely on D to take reasonable steps to protect him from his step-father. C relied on two decisions – Hedley Byrne v Heller & Partners Ltd [1964] AC 465, and CN v Poole Borough Council [2019] UKSC 25.

Despite D’s assertions that the claim was bound to fail, the Court held there was a case to answer and the claim should not be struck out. His Honour, Judge Roberts, commented that the Supreme Court “was at pains to point out in Poole Borough Council that each case turns on its own facts”. Furthermore, “An assumption of responsibility can arise where a claimant entrusts a defendant with the conduct of his affairs in general or particular. Such situations can arise where the Defendant undertakes the performance of some task, or the provision of some service for the Claimant, with an undertaking that reasonable care will be taken. Such an undertaking is commonly implied by reason of the foreseeability of reliance by the Claimant on the exercise of such care.”

It was noted that C had set out several positive acts which they relied on and this was enough to conclude an arguable assumption of responsibility. Therefore, “for the purposes of this case, it is common ground that it must be accepted that the Defendant was negligent, and the Claimant has suffered sexual, physical and psychological injuries.”

NEGLIGENCE

Comment

The lack of reported cases since the decision in CN v Poole Borough Council means the law regarding when an assumption of responsibility arises is still developing. However, in CN the Supreme Court held that the investigation and monitoring by the Defendant local authority did not result in any provision of service the Claimant could foreseeably rely on.

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Court Circular Autumn 2020 > Negligence

King (A Protected Party By His Litigation Friend, Susan Rummey) v Wright Roofing Company Ltd, 07.08.2020, Queen’s Bench Division

Snapshot A roofer who had suffered a severe head injury and other serious injuries after a fall at work did not have the capacity under the Mental Capacity Act 2005 to litigate his negligence claim or manage and control any award made by the Court.

In-depth The Claimant, C, suffered serious head injuries and other permanent injuries after suffering a fall at work. C suffered personality changes, could not work, and got into debt. He spent interim payments on trips to the Dominican Republic, as he believed the climate helped his mood. He also lent some of the money to acquaintances.

C’s family became concerned about his mental capacity and a litigation friend was appointed for him in March 2019. Two deputies were also appointed to manage his finances. C became frustrated with the process, believing all parties, including his Solicitors, were dragging out proceedings to enrich themselves. At one point he approached D’s insurers directly. C’s Solicitors and litigation friend were concerned that he would under-settle the claim, squander any sums received and be unable to pay for the care he required for the rest of his life.

Under the Mental Capacity Act 2005 s.2(1), the test for capacity was whether a person was unable to make a decision for themselves in relation to a matter because of an impairment of, or a disturbance in the functioning of, their mind or brain. Under s.3(1), there were four aspects of inability to decide. In this case, the issue was the third aspect, namely whether C could use or weigh relevant information as part of the decision-making process.

After hearing the evidence and reading the expert report, the Court held that C lacked the capacity to use or weigh relevant information. Although he understood the litigation process, he would not listen to advice or think beyond merely disagreeing with the way the claim was being managed. He could not use and weigh information about CPR Part 36 offers and the consequences of recovering less than the amount of such an offer. He had particular difficulty using and weighing information about the disadvantages, from the perspective of his damages claim, of declining help with rehabilitation that would help to improve his condition. Further, C sometimes (mistakenly) thought that the cost of any assessment or treatment would not always be funded from his compensation.

Regarding his ability to manage any compensation award, it was decided that although C understood finances, such as interest, debt, property purchase and rental, he was forgetful and when overseas he could not manage his money. He was so keen to travel to lighten his mood and improve his quality of life that he was unable to use or weigh financial information about the need for future care and the foreseeable adverse consequences of being unable to afford it. Therefore, it was held that C did not have the mental capacity to manage any financial award granted to him.

NEGLIGENCE

Comment

This decision illustrates the careful balancing act the Courts have to conduct when deciding capacity cases in relation to personal injury. Taking away a person’s freedom to make their own decisions is not something that is done lightly.

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Court Circular Autumn 2020 > Negligence

Swift v Carpenter, 09.10.2020, Court of Appeal

Snapshot In a landmark decision, the Court of Appeal held that people who require special accommodation after suffering a personal injury will receive fair and reasonable compensation to purchase a property. The Court departed from the case of Roberts v Johnstone [1989] Q.B. 878, [1988] 3 WLUK 229, which had provided the calculation for accommodation awards for the past 32 years, on the grounds that it no longer achieved fair and reasonable compensation.

In-depth The Appellant, A, was seriously injured in a car accident in October 2013. Her lower left leg was amputated and she suffered ongoing disability of her right foot. At the time of the trial, A was 43 years of age, having been injured at the age of 39 years. She was expected to live to the age of 89.1 years. The lifetime multiplier for future loss was agreed to be 55.02, using the then current discount rate of -0.75%. The judge at first instance made a lump sum order of £4,098,051. She found that the additional capital cost of special accommodation would be £900,000 more than the value of A’s existing home. However, she declined to make any additional capital cost award as she believed she was bound by the approach in Roberts v Johnstone.

The Court of Appeal ruled that Roberts did apply to this case, as an authoritative guidance relating to the specific conditions prevailing at the time the case was decided (32 years ago). Roberts had been shown to now be ineffective in achieving the object of the relevant principles of law, namely full compensation without over-compensation. The Court ruled that the formula provided by Roberts no longer provided fair and reasonable compensation for an injured claimant. To withhold all accommodation-based damages (as occurs in this case with the negative discount rate achieved by following Roberts) for the purpose of avoiding an eventual windfall by the Claimant was not acceptable.

Lord Justice Irwin considered the best approach would be to deduct the windfall element from the full value of the additional capital cost of the property. Regarding how the windfall was to be calculated, he concluded that the value of the reversionary interest (which would be a value based at the hypothetical date of death) was the best solution.

To deal with the fact that the current value of a future interest in a property was subject to several variables, the Court concluded the best way to calculate the value of the reversionary interest was to apply a discount or investment rate. Having considered the various rates proposed by the parties as well as expert opinion, the Court concluded that +5% was the appropriate rate to be applied to C’s life expectancy.

The Court of Appeal quashed the trial judge’s decision not to make an award in respect of an identified need, namely, buying a new home. Applying a 5% discount rate to C’s life expectancy of 45.43 yielded a reversionary interest value of £98,087, which when subtracted from the £900,000 produced damages of £801,913, which was subsequently awarded.

NEGLIGENCE

Comment

This case marks a return to the courts making accommodation awards aimed at meeting Claimants’ needs. The Court of Appeal was careful to avoid a repeat of the issues brought about by rigidly applying Roberts, Lord Justice Irwin stating that certain situations called for flexibility:

“… for longer lives, during conditions of negative or low positive discount rates, and subject to particular circumstances, this guidance should be regarded as enduring.” Lord Justice Underhill also emphasised that cases where the Claimant had a short life expectancy ‘may require a different approach.”

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Court Circular Autumn 2020 > Defamation

Burleigh v Telegraph Media Group Ltd, 02.09.2020, Queen’s Bench Division

Snapshot This case explored whether an apology published by a newspaper for a feature it had published was defamatory. In this case, which involved a newspaper story about Melania Trump, the Court held it was not.

In-depth The Claimant, C, had written an article on America’s First Lady, Melania Trump, which was published by the Defendant, D. It was subsequently discovered that the article contained several inaccuracies. D published an apology in the Telegraph newspaper in relation to the inaccuracies. D also agreed to pay Mrs Trump damages and legal costs.

Although the apology did not identify C, she claimed that it insinuated that she had negligently and/or maliciously written the piece that contained serious and defamatory falsehoods about Mrs Trump. C also argued that readers would know that the apology referred to her as the article’s author.

D denied that the apology was defamatory, stating that its meaning was focused on apologising for the inaccuracies of the article.

The Court held the apology was not defamatory. It did not allege or imply any culpable failure on the part of C nor did it indicate there was a want of skill or care on her part. The corrections of the “false statements” were not of a gravity that suggested a fundamental failure by C, as the author of the original article. On the contrary, they would strike the hypothetical reader as being trivial or insubstantial. Most importantly, the apology contained no attribution of fault or blame for the mistakes. The reader was told nothing in the apology of how the “false statements” came to be included in the original article.

DEFAMATION

Comment

Although defamation was not found in this case, the Court made clear that a published apology could fall within the scope of defamation should a different set of facts apply.

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Court Circular Autumn 2020 > Scotland – Police

BC and others v Chief Constable Police Service of Scotland and others, 24.09.2020, Court of Sessions (Inner House)

Snapshot Examining the content of WhatsApp messages and then bringing disciplinary proceedings against police officers involved did not breach ECHR Article 8 privacy rights as the officers could have no expectation of privacy and the use of the messages was necessary and proportionate.

In-depth The Court was asked to consider whether the Police Service of Scotland (PSS) breached Article 8 of the ECHR when it brought misconduct proceedings against individual police officers based on messages they had sent to each other on a WhatsApp group.

During a 2016 investigation into sexual offences within the PSS, the investigating officer discovered and read WhatsApp messages sent by a suspect police officer. The Professional Standards Department within the PSS reviewed the messages and considered them to be “sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability” and having a “flagrant disregard for police procedures by posting crime scene photos of current investigations”. They also included a photograph of a female suspect in a cell. Misconduct charges under the 2014 Regulations were brought against several officers involved.

The officers brought a petition to the Outer House of the Court of Sessions stating that the use of WhatsApp messages to bring non-criminal misconduct proceedings against them breached their privacy rights under the ECHR, art. 8.

The Outer House refused the petition. The Inner House concluded that, regarding the WhatsApp messages, the officers could have no expectation of privacy. Therefore, as held in the Outer House, their rights under art.8 were not affected. It was held that in deciding whether a right to privacy existed in relation to digital messages, the Court should consider the:

• content of the messages

• the attributes of the senders

• the attributes of the receivers

• how the messages came to the attention of an investigator

In this case, the senders and receivers were sworn police officers who had to accept a lesser degree of privacy due to their position in society. The receivers were under a sworn duty to report, challenge or act against the conduct of other constables which had fallen below the Standards of Professional Behaviour. Furthermore, the messages came into the hands of the PSS in a legitimate way.

The recent Supreme Court decision of Sutherland v HM Advocate [2020] UKSC 32 was considered, and it was concluded that it did not change the test as to whether a reasonable anticipation of privacy was to be expected.

It was held that even if art.8 rights were engaged, any use of the messages had to be “in accordance with the law”, which meant there had to be a clear and accessible legal basis for their use. The Court stated that there was a clear public interest in maintaining a properly regulated police force, and this was of importance to public confidence in the police and the proper discharge of police duties. The public interest fell squarely within an identifiable policing purpose as defined in section 32 of the Police and Fire Reform (Scotland) Act 2012. The legal basis for the use of the messages was clear and accessible, and the consequences of the use of the messages for these purposes were foreseeable by the officers.

SCOTLAND – POLICE

Comment

The Outer House stated that there was now a fully developed common law right to privacy in Scotland. However, in Obiter, the Inner House expressed doubts that this was the case. When it comes to work-related messages and emails, the Courts have so far been reluctant to find a right to a reasonable expectation of privacy. A notable exception is B rbulescu v Romania (Application no 61496/08) [2017] ECHR 754, in which the ECtHR upheld a complaint by an employee whose employer had monitored the content of his work-related Yahoo instant messenger account.

This case paves the way for people who work in regulated industries with a high level of public trust, such as lawyers, doctors, police officers and social workers to have disciplinary action taken against them in relation to private electronic messages should they be brought to their employer’s attention.

@us @colleague 21

Court Circular Autumn 2020 > Scotland – Negligence

Wright v National Galleries of Scotland, 27.08.2020, Sheriff Appeal Court

Snapshot A milkman was injured whilst delivering milk to the Scottish National Portrait Gallery in Edinburgh. The Court concluded that the defenders were in occupation and control of the premises and accordingly had a common law duty to take reasonable care for the safety for those entering on the premises.

In-depth The Pursuer, P, delivered milk to the Defender, D, usually early in the morning and through an entrance at the rear of the gallery. P was required to place the milk directly in the fridge, which was easily accessed from there. As a result of a security review, D changed their procedures for visitors to the gallery, and in particular precluded deliveries to the rear entrance. The new procedures required P to deliver milk through an unlit kitchen, where unbeknown to him, there was a step. On his first delivery via the kitchen, he fell down the step and suffered an injury.

On appeal, P argued D was responsible for altering the out of hours access arrangements and breached its common law duty of care to take reasonable care for his safety. P also claimed that D committed a statutory breach of the Occupiers’ Liability (Scotland) Act 1960 section 2 and regulation 17 of the Workplace (Health, Safety and Welfare) Regulations) 1992. D stated it was not an occupier of the gallery and denied having control over the entire premises.

The Sheriff Appeal Court ruled that D was an occupier and in control of the gallery and therefore owed anyone who entered the premises a common law duty of care. The terms of WHSW Regs, regulation 17 were engaged, and D should have considered a suitable and safe access route for milk deliveries, as opposed to leaving P to navigate a step in the dark whilst he was wheeling a cage full of milk. The Court ruled that, at first instance, the Sheriff focused on the responsibilities of the operators of the café in the gallery and had not carried out a full and proper analysis of D’s occupation and control. D had the necessary knowledge as to the end point for P’s delivery and should have worked out a safe delivery route.

SCOTLAND – NEGLIGENCE

Comment

This decision illustrates the duty owed by those running public attractions in Scotland to ensure they exercise due care when mapping out routes for visitors to the premises. Sheriff Principal Stephen said:

“Clearly, the gallery, being a public attraction, will have a significant number of visitors to whom the defender owes a duty of care. The pursuer is someone who regularly delivers milk products to the café within the gallery and is nonetheless a visitor to whom the gallery owes a duty to see that he is reasonably safe whilst on the premises.

“There is a general duty of care on an occupier towards those who are lawfully on the premises. There was no clear understanding of what the system for access with the milk delivery was. The inference is that no consideration had been given to how the delivery was to be made safely. Any step is a hazard and in this case a hazard which could have been avoided by using the alternative route or mitigated by means of a warning notice or ramp.”

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Court Circular Autumn 2020 > Northern Ireland

McNern (Jennifer) and Turley’s (Brian) Application, 21.08.2020, Queen’s Bench Division (Belfast)

Snapshot In a Judicial Review application brought by two individuals who claim entitlement to payments under the Victims’ Payments Regulations 2020, a High Court judge stated that the delay in implementing the Troubles pension could not be tolerated and the Deputy First Minister was ignoring the rule of law by blocking progress on the pension scheme.

In-depth Judicial Review proceedings were brought by the two Claimants, (collectively referred to as “C”), one who lost her legs in an IRA bomb attack on the Abercorn Restaurant in Belfast city centre in March 1972, and a member of a group known as the “Hooded Men” who say they were subjected to torture after being held without trial in 1971.

The matter concerned a pension scheme, which was approved by Westminster in January 2020. The scheme was created to compensate people who were seriously injured during the Troubles.

The Northern Ireland (Executive Formation etc) Act 2019, section 10(1) which came into force on 22 October 2019, imposed a duty upon the Secretary of State for Northern Ireland:

“by regulations to establish a scheme under the law of Northern Ireland which provides for one or more payments to be made to, or in respect of, a person who has sustained an injury as a result of a Troubles-related incident.”

This is further to the commitment set out in paragraph 28 of the 2014 Stormont House Agreement to find a way to provide a “pension” for those most seriously injured in the Troubles.

The Northern Ireland Executive was not reformed until 10 January 2020. To comply with his statutory duty, the Secretary of State for Northern Ireland duly made the Victims’ Payments Regulations 2020 on 31st January 2020. The Explanatory Memorandum describes the purpose of the Regulations in the following terms:

“This instrument establishes a Scheme for payments to be made to those permanently disabled as a consequence of injury caused by a Troubles-related incident. The instrument makes provisions for who will be entitled to payments and for how much, for decisions and appeals, and creates a new body to operate the Scheme.”

C’s Judicial Review challenge was based on the allegations that there was a deliberate and intentional failure of the Defendant Executive Office, D, to comply with its obligation clearly and unequivocally set out in paragraph 2(1) of Schedule 1 to the 2020 Regulations to designate a Northern Ireland Department to exercise the administrative functions of the Victims’ Payments Board established by regulation 3(1). They also stated that D’s failure to make any grants to the designated Department under paragraph 9 of Schedule 1 is unlawful.

D argued that although the regulations do require it to designate a department, they do not require the designation of a specific department within a particular timeframe.

The Court disagreed, ruling that the only “reasonable and rational interpretation” of paragraph 2(1) of Schedule 1 is that it imposes a duty on D to designate a Northern Ireland Department on 24 February, 2020 or as soon as possible thereafter so as to enable a Board to be established and functioning to a limited extent before 29 May, 2020.

D also argued that:

“..the Court is not constitutionally entitled or properly equipped to explore, address and adjudicate upon what are essentially political/policy issues. The Executive Office asserts that it is presently refusing to designate a Department in furtherance of promoting a purely political policy agenda and, therefore, the Court should be very wary of engaging in any form of scrutiny of the reasons put forward by the Executive Office for refusing to designate a Department.”

NORTHERN IRELAND

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Court Circular Autumn 2020 > Northern Ireland

This assertion was robustly rejected by the Court, who stated:

“This argument does not withstand even the most cursory form of scrutiny. It is, in reality, arrant nonsense dressed up in the guise of reasoned legal argument.”

It went on to say:

“The actions of the Executive Office cannot be construed as a lawful decision to delay designation of a Department in order to promote the policy and objects of the legislation but rather an unlawful decision to refuse to designate a Department in an effort to have the lawful scheme promulgated in the 2020 Regulations replaced by a very different scheme. Under no circumstances can such stance be sanctioned or left unaddressed by the Court.

Put in its starkest terms, the Executive Office seeks to persuade the Court that it is legitimate for the Executive Office to deliberately refuse to comply with a legal requirement set out in a legislative scheme promulgated by the Westminster Parliament in order to force changes to that legislative scheme. This is a truly shocking proposition. It demonstrates either wilful disregard for the rule of law or abject ignorance of what the rule of law means in a democratic society.”

The Court stated that D’s actions were unlawful.

NORTHERN IRELAND (Cont.)

Comment

After the Honourable Mr Justice McAlinden gave his decision, the Executive Office appointed the Department of Justice to administer the scheme; therefore, there was found to be no need for an additional order. However, the Executive Office was ordered to pay all C’s legal costs.

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Court Circular Autumn 2020 > How can we help?

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