Following the announcement last week of Sir John Dyson as the twelfth Justice of the Supreme Court, we now take a look at Sir John's career. As we reported here, Sir John is the second Justice to be appointed directly to the Supreme Court and his appointment will take effect from 13 April 2010.

Sir John Anthony Dyson was born on 31 July 1943, the son of Richard and Gisella Dyson. He was educated at Leeds Grammar School before attending Wadham College, Oxford, where he was the Open Classics Scholar. Sir John became an honorary fellow of Wadham College in 2001.

Sir John was called to the Bar, Middle Temple, in 1968 as a Harmsworth Law Scholar and he took tenancy at Keating Chambers in 1969. Keating's website notes that Sir John "rapidly established a wide and varied practice". Notably, during his first year of tenancy, Sir John appeared as the junior junior in the House of Lords for the appellant in the seminal conflict of laws case Chaplin v Boys [1969] 2 All ER 1085 (road accident in Malta, appropriate law to govern issue of recoverable damages). Fifteen years later, Sir John had risen up the ranks to represent the appellants as senior counsel in the equally notable House of Lords cases: Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529 (negligence, duty of care owed pursuant to statutory powers); and Linden Gardens Trust Ltd v Lenasta Sludge Disposals Ltd [1994] 1 AC 85 (better known as St Martins v McAlpine) (prohibitions on assignments of contracts).

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This is the last week of the Hilary Term.  Neither the Supreme Court nor the Judicial Committee of the Privy Council have any hearings or judgments listed this week.  We expect the hearing list for the Easter term to be announced in the course of this week. Thirteen permission for appeal decisions have been announced for the period 22 February to 5 March 2010 – with permission granted in seven – an unusually high proportion of 54%.   We will look at these in more detail in a separate post.  [read more]

The US public service channel C-Span has featured a recent discussion between Justice Scalia and Justice Breyer on “Original Intent and the Living Constitution”.    The debate was broadcast on BBC Parliament and is currently available on BBC iPlayer.  The issue under debate is a fundamental one: to what extent are judges entitled to shape the law to take into account changes in values or social conditions. [read more]

The full text of Lord Kerr’s J M Kelly Memorial Lecture, given at University College Dublin on 20 November 2009 has now been made available.  We blogged about the lecture when it was given, referring to the summary on the excellent “Human Rights in Ireland Blog“.

Lord Kerr has now revised the text of the Lecture, the full title of which is “The Conversation between Strasbourg and National Courts – Dialogue or Dictation?” [read more]

The decision in R (JS)(Sri Lanka) v Secretary of State ([2010] UKSC 15) is the first of a series of cases before the higher courts to reach the Supreme Court on the issue of exclusion from refugee status under article 1F of the Refugee Convention.  In recent years this provision has come to be applied against an increasing number of individuals claiming refugee protection.  As such the decision represents significant guidance in the area.

The case concerns article 1F(a) of the Convention, which excludes an individual from protection where “there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”. [read more]

Prior to the Supreme Court being established, a seminar was conducted under Chatham House Rules to discuss how it should work.  The notes of the seminar, published here, include the following:

a Law Lord said that in his experience there were two main areas of concern about the House of Lords. One was that the speeches in House of Lords cases were too long, there were too many of them in each case, and they were sometimes difficult to reconcile with each other.

The highly publicised "JFS" case (R (on the application of E) v Office of the Schools Adjudicator (Governing Body of JFS and others, interested parties) (British Humanist Association and another intervening) [2010] 1 All ER 319; [2009] UKSC 15) suggests that not much has changed from the days of the House of Lords.  Five separate majority opinions were given.  None was nominated as the leading judgment.  Readers therefore had to read each one. 

In such cases either the judgments are all consistent with each other, in which case five separate opinions are not necessary, or they are not, in which case the court would not have discharged its duty to clarify the law.  (In the JFS case itself Lady Hale said as a passing remark that the majority judgments were essentially all the same). [read more]

The confirmation of Lord Dyson as the Twelfth Justice of the UK Supreme Court means that Lady Hale will continue to be the Court's sole female judge for the time being. 

As we have previously reported, the UK Supreme Court has received criticism for its lack of diversity (and we will soon be posting an article on judicial diversity in the UK). 

This has made us look to our friends across the pond.  Out of the 9 Justices in the US Supreme Court, two of them are women.  This time last year, Justice Ruth Ginsburg was the only female on the panel (as had been the case since the retirement of Sandra Day O'Connor, the first female Justice in the US Supreme Court, in 2006), but Barack Obama's nomination of Sonia Sotomayor last May (the first nomination by a Democrat president since 1994), and her appointment as a Justice on August 8 2009, nudged the number of women on the panel up to two. [read more]

On appeal from: [2009] EWCA Civ 281.

The issue before the Court was whether there was an entitlement to certain pay supplements as part of pilots’ right to “paid annual leave” under the Aviation Directive. The Supreme Court held unanimously that the appeal raised an issue of general principle, and referred questions to the Court of Justice of the European Union. The Court noted that the legal basis of the relevant Directives was to protect health and safety, and that the present leave arrangements for pilots did not pose a risk. It was not clear whether “paid annual leave” has a closely defined autonomous European meaning or whether individual Member States retain a discretion to define the term.

For judgment, please download: [2010] UKSC 16
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII  
 

The case of A v Essex County Council is an appeal against a decision of the Court Appeal handed down nearly two years ago ([2008] EWCA Civ 364) in a claim brought on behalf of a severely disabled child, anonymised as A, for damages for breach of his human rights.  Field J had given summary judgment for the defendants ([2007] EWHC 1652 (QB)).  The claimant's case is that he was shut out of the state system for 18 or 19 months and that this was inhuman or degrading treatment and an unjustified disruption of his private and family life, as well as to discrimination in the enjoyment of the right under Article 2 of the First Protocol ("A2P1").  The appeal will be heard by Lord Phillips, Baroness Hale, Lord Brown, Lord Kerr and Lord Clarke on 24 and 25 March 2010.  The National Autistic Society have been given permission to intervene. [read more]

A GDL student, Anita Davies, has won this year’s Times Law Awards essay competition on Supreme Court UK: radical change or business as usual? The Times reports that the winners were chosen from nearly 300 entries by a panel from One Essex Court, and a judging panel consisting of Justice Secretary Jack Straw; Lord Phillips of Worth Matravers, the President of the Supreme Court; Lord Grabiner; James Harding, Editor of The Times, and David Cavender, QC, of One Essex Court. Praising Ms Davies’ winning entry, Jack Straw said that it was “an engaging, erudite piece of prose”.

The winning essay, New café, jaunty carpet with Supreme Court attached, can be read here. [read more]

The "Twelfth Man" saga has finally been resolved.  Since Lord Neuberger was appointed as the Master of the Rolls in October last year, the position of the twelfth Supreme Court justice has been vacant.  The appointments process has been slow and punctuated by rumours judicial disagreements, as Frances Gibb has reported here.  First it seemed that Jonathan Sumption QC was a leading candidate but then withdrew his candidature, apparently in the face of opposition from senior judges.  It was reported that the appointments commission produced a shortlist of four names: Lady Justice Arden, and Lord Justices Maurice Kay, Wilson and Dyson.

A short notice today on Number 10's website confirms that with effect from 13 April 2010 (the begining of the Easter court term) Lord Justice (John) Dyson will be appointed to the role with the approval of Her Majesty the Queen.  [read more]

The US Supreme Court has launched its new website. This has a new URL - www.supremecourt.gov - and a number of new features.  These include: recent Court decisions accessible from the homepage, an interactive Court calendar, a new case citation finder and enhanced search and navigation capabilities.  The "Court calendar" and the document search facilities have attracted particular praise from Supreme Court watchers in the US.  For the first time, the website will now be run by the Court itself - its previous site having been run the by Government Printing Office.  [read more]

Facing the Supreme Court this week is the paradox that pre-nuptial contracts are  “at one and the same time both unenforceable and  invalid as being against public policy and matters which the court is prepared to take into account (and possibly decisively)” in the exercise of its jurisdiction under section 25 of the Matrimonial Causes Act 1973.  This is “…anomalous, albeit plainly the present state of the law”. The conundrum presented to the courts by pre-nuptial contracts was thus articulated by Rix LJ in the Court of Appeal decision ([2009] EWCA Civ 649 [64]).

Mr Granatino’s appeal from the unanimous Court of Appeal decision handed down on 3 October 2008 by Thorpe, Rix and Wilson LJJ in Radmacher is to be heard on Monday 22 and Tuesday 23 March.  Such is the importance attributed to the issue that it is to be heard by nine Justices of the Supreme Court - Lord Phillips, Lord Hope, Lord Rodger, Lord Walker, Baroness Hale, Lord Brown, Lord Mance, Lord Collins and Lord Kerr. [read more]

Two cases are due to be heard this week.  It is the penultimate week of the Hilary term and these are the last two cases listed. On Monday and Tuesday a nine strong bench consisting of Lords Phillips, Hope, Rodger, Walker, Lady Hale and Lords Brown, Mance, Collins and Kerr will hear the case of Radmacher (formerly Granatino) v Granatino. The Court of Appeal's decision to uphold a pre-nuptial agreement between Ms Radmacher, of one of Germany's richest women, and her ex-husband Mr Granatino, has been viewed by many commentators as a clear indication that judicial opinion on the enforceability of pre-nuptials has shifted. Under English law a pre-nuptial is not a binding contract as such as under the Matrimonial Causes Act 1973 the court must "have regard to all the circumstances of the case".  The Supreme Court will determine, firstly, whether the Court of Appeal erred in finding that pre-nuptial contracts ought to be given decisive weight, where entered into freely by both parties, in an assessment under section 25 of the Matrimonial Causes Act 1973, and secondly, whether the Court of Appeal decision amounted to impermissible judicial legislation, in contravention of the decision of the Privy Council in MacLeod v MacLeod (Isle of Man) [2008] UKPC 64. Our case preview is here and the case details can be found on the Supreme Court website here. [read more]

It appears that the long running saga of the appointment of the twelfth justice of the Supreme Court might be about to come to an end.   We last blogged about this on 6 February 2010 when we dealt with various "revelations" about the process. Older readers will recall the story of Mr Jonathan Sumption's application and then withdrawal which was the subject of earlier post. It seems that an announcement is now imminent - nearly 6 months after the establishment of the Court..  Frances Gibb has a piece on the Times Law Central Blog yesterday under the headline "New Supreme Court Justice? Any day now ..." in which she says "Law Central understands that any day now the new Supreme Court justice will be announced - and the hot tip is Sir John Dyson". [read more]

On 10 March 2010 the Supreme Court delivered judgment in RTS Flexible Systems Limited v Molkerei Alois Muller Gmbh [2010] UKSC 14. The case, which we previewed here, concerns a problem which frequently arises in business practice: where commercial parties begin carrying out work on the basis of an initial letter of intent, with a full contract to follow, but do not then execute that contract even after the letter of intent has expired, has a binding agreement been reached? 

In this instance the Justices (Lords Phillips, Mance, Collins, Kerr and Clarke, with the last giving the sole judgment of Court) found, unanimously allowing Muller's appeal, that a binding agreement had been reached based on an objective assessment of the parties' intentions. The Court's judgment does not break any new ground, but it does contain a clear restatement of the relevant principles, in particular the fact that (i) the Court will apply the "reasonable honest businessman" test (per Steyn LJ in the Percy Trentham case) to objectively assess whether or not the parties intended to be bound, and (ii) 'subject to contract' clauses can be waived by the parties, if their conduct subsequently shows that they did intend to be bound. The case is also notable for the fact that the Supreme Court, Court of Appeal and High Court all reached different conclusions. The result for the parties has been an expensive legal mess, about which Lord Clarke had this to say: "The different decisions in the courts below and the arguments in this court demonstrate the perils of beginning work without agreeing the precise basis upon which it is to be done. The moral of the story is to agree first and start work later."      [Read More]

On appeal from: [2009] EWCA Civ 364.

Concerned the application for asylum by a former member of the Liberation Tigers of Tamil Eelam. The Court unanimously dismissed the Secretary of State’s appeal. It could not be said of the LTTE that as an organisation was “predominantly terrorist in character” and so the Secretary of State had acted on a wrongful presumption that the respondent was guilty of personal and knowing participation in war crimes. Gurung [2002] UKIAT 04870 (starred) should not be afforded the same standing as it had previously enjoyed - it was unhelpful to attempt to carve out from amongst organisations engaging in terrorism a sub-category of those "whose aims, methods and activities are predominantly terrorist in character", and to suggest membership gives rise to a presumption of criminal complicity. It was preferable to focus on the determining factors in any case, namely the nature of the organisation, whether the organisation was proscribed (and by whom), how the asylum-seeker was recruited, length of time in the organisation, his position, rank and influence, his own knowledge of and involvement in war crimes. The second major criticism of Gurung was its introduction of the idea of a "continuum" in relation to the types of organisations and their policial aims, for war crimes cases.

The Court also considered the true interpretation of Article 1F(a) of the Refugee Convention, and the extent to which complicity in the commission of war crimes and crimes against humanity amount to a basis for the exclusion of an individual from the application of the Refugee Convention.

For judgment, please download: [2010] UKSC 15
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII
 

On 10th March 2010 the Supreme Court handed down a unanimous judgment, delivered by Lord Collins, in Agbaje v Akkinoye-Agbaje ([2010] UKSC 13) the first case under Part III of the Matrimonial and Family Proceedings Act 1984 ever to have been heard by the highest tribunal in the land

The case concerned an application made by a former wife (“the wife”) under the 1984 Act for financial relief in England after a Nigerian divorce. The parties, who both had Nigerian and British citizenship, were married for over 32 years.  Most of their marriage had been spent in Nigeria although their children had been born and educated in England. After the parties separated in 1999 the wife had set up home in England. 

The effect of the Nigerian financial order was to award the wife a life interest in a home, worth about £83,000, in Nigeria and a lump sum of £21,000 to provide maintenance for life.  Her former husband (“the husband”) retained assets worth some £616,000.  The wife obtained leave to proceed with her application under Part III from Munby J (as he then was). [read more]

The World's Supreme Courts were busy during February 2010, and a summary of the cases heard in each of them appears below.

Australia

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) The High Court heard three related proceedings concerning occupational health and safety.

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2 (3 February 2010) This appeal concerned the validity of a compulsory acquisition for the construction of a railway and, in particular, the power of the Respondent to compulsorily acquire land where not all of the land was required for the railway.

Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3 (10 February 2010) This concerned an appeal by farmers against the replacement of their bore licences with aquifer access licences for the extraction of groundwater on the grounds that the replacement constituted an acquisition of their property on unjust terms contrary to s.51(xxxi) of the Australian Constitution.  [read more]

Our attention has been drawn to an interview with Lord Phillips, carried out by Michael Harris of the Constitution Society and available, in a number of segments on You Tube.  The first segment deals with the formation of the Supreme Court:

There are eight further segments of the interview.  [read more]