UKSCBlog

Lord Phillips Interviewed by the Constitution Society (Blog Editorial)

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]

Case preview – R (Smith) v Secretary of State for Defence - on appeal from [2009] EWCA Civ 441 (Alex Bailin, Matrix)

This appeal is listed before a nine-Justice Supreme Court on 16 March 2010. Five of the Justices were members of the nine-judge House of Lords which decided R (Gentle) v Prime Minister [2008] 1 AC 1356.

The Court will decide the important issue of whether a solider on military service in Iraq was subject to the jurisdiction of the UK within the meaning of Article 1 of the Convention and is therefore protected by the Human Rights Act.

The jurisdictional question is particularly important for the deceased soldier’s family because an Article 2-compliant inquest is more far-reaching than a traditional inquest. Private Smith died of heatstroke. A traditional inquest would only consider what were the immediate causes of his death. An Article 2-compliant inquest, however, would consider whether there were any systemic army failures which led to his death and whether all reasonable steps were taken to prevent it. [read more]

In the Supreme Court w/c 15 March 2010 (Blog Editorial)

The Supreme Court will hear one full appeal and an application for permission to appeal this week, and one judgment will be handed down. On Monday, Tuesday and Wednesday the case of R (Smith) v Secretary of State for Defence will be heard in courtroom 1 by a 9 strong bench consisting of Lords Phillips, Hope, Rodger, Walker, Lady Hale and Lords Brown, Mance, Collins and Kerr. The case relates to the death of a British soldier while on active service in Iraq and is likely to be closely followed in the press, as it could have significant implications for those continuing to serve on military operations.

The issues for the court to determine are: (1) whether a British soldier on military service in Iraq is subject to UK jurisdiction within the meaning of article 1 of the European Convention on Human Rights ("ECHR") so as to benefit from the rights guaranteed by the Human Rights Act 1998 while operating in Iraq; and (2) whether the inquest into the soldier's death must conform to the procedural obligation implicit in article 2 of ECHR. Our case preview is here and the case details on the Supreme Court website can be found here. [read more]

Profiles: Lord Brown of Eaton-under-Heywood (Anna Caddick)

To continue our series of profiles of the Justices of the Supreme Court (for previous posts see Lord Rodger here, Lord Kerr here and Lord Hope here), we turn this week to Lord Brown of Eaton-under-Heywood.

Simon Denis Brown was born on 9 April 1937, the son of Denis Baer Brown and Edna Elizabeth Abrahams. He was educated at Stowe School, Buckinghamshire before undertaking military service in the Royal Artillery from 1955 to 1957, reaching the rank of 2nd Lieutenant. Brown was in active service in Cyprus from 1956 to 1957.

Lord Brown then attended Worcester College, Oxford: he graduated in 1961 and was called to the Bar at the Middle Temple the same year as a Harmsworth scholar. Brown became a Bencher of the Inn in 1980 and an honorary fellow of Worcester College in 1993. [read more]

New Judgment: Agbaje v Akinnoye-Agbaje [2010] UKSC 13 (Matrix Legal Information Team)

On appeal from: [2009] EWCA Civ 1.

The Court considered the proper approach for courts to take when considering applications made under the Matrimonial and Family Proceedings Act 1984, Pt III (powers to grant financial relief after a marriage has been dissolved in a foreign country). The Supreme Court unanimously allowed the appeal. The purpose of the Act was the alleviation of the adverse consequences of inadequate financial provision being made by a foreign court where the parties had substantial connections with England. The court should not be deciding whether it would be appropriate for an order to be made by a court in England or Wales as opposed to a foreign court – the whole point of Pt III was to allow for relief where there have already been proceedings in a foreign country. The legislation was not however, a simple “top up” of the foreign award so as to equate with an English award. The amount of financial provision awarded would depend on all the circumstances of the case.

For judgment, please download: [2010] UKSC 13
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

New Judgment: RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh & Company KG (UK Production) [2010] UKSC 14 (Matrix Legal Information Team)

On appeal from: [2009] EWCA Civ 26.

The question before the Court was whether the parties entered into a contract following the expiry of a letter of intent, and if so, the terms of the contract. In a unanimous decision, the Supreme Court held that although there was no formal contract, the parties did reach a legally binding agreement and that agreement contained wider terms than the limited ones found by the High Court at a trial of preliminary issues. It was unrealistic to suppose that the parties did not intend to create legal relations. The parties had reached essential agreement on the issues, and it was possible for an agreement ‘subject to contract’ to become legally binding if the parties later agree to waive that condition. The Court held that the parties had agreed to waive the subject to contract provision. Any other conclusion made no commercial sense.

For judgment, please download: [2010] UKSC 14
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

Christian registrar denied leave to appeal gay wedding refusal [updated] (Blog Editorial)

The Telegraph reports that the UKSC has refused Lillian Ladele permission to appeal against the decision in Ladele v Islington LBC [2009] EWCA Civ 1357, and that she may “try to take her case to the European Court of Human Rights, as she believes it shows that the right to religious conscience has been "trampled" by the rights of homosexuals”. [read more]

Case Comment: W (children) [2010] UKSC 12 (Madeleine Reardon, 1 KBW)

On Wednesday 3 March 2010 the Supreme Court delivered judgment in W (children) [2010] UKSC 12, one day after hearing argument and just in time for a fact-finding hearing listed this week. The issue for the Court was whether the trial Judge had been wrong to refuse the father’s application for his 14-year-old step-daughter, who had made allegations against him of serious sexual abuse, to be called to give oral evidence. The father’s appeal has been allowed, and the issue remitted to the trial Judge to be dealt with at the start of this week’s hearing.

The issue of children giving evidence in care proceedings, particularly in fact-finding hearings where their evidence may go to the heart of whether or not the threshold criteria are made out, has arisen on a number of occasions in recent years. The question has become more urgent since the courts have been obliged to consider the Convention rights both of the adult accused (to a fair trial) and of the child and other family members (to respect for private and family life.) At the same time it has not escaped the notice of the family courts that children are now giving evidence on a regular basis in criminal proceedings, almost always with the assistance of ‘special measures’ – and sometimes on the very allegations which may fall to be tested again in the parallel care proceedings, where the outcome may often be even more serious both for accuser and accused. [read more]

Case Comment: R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11 (Warren Gordon, Olswang)

This case arises out of a long running dispute between local residents and their council over the plan to allow developers to build new homes on Coatham Common in Redcar. The question for the Supreme Court was whether local residents could register the land, which had formerly been used as part of a golf course, as a "town green" under section 15 of the Commons Act 2006.

We have previously set out here the facts of the case, and the decisions below. The High Court and Court of Appeal had both decided that the residents could not register the land as a town green because they had not "indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years". The key basis for that decision was that in using the land for recreation, they "deferred" to members of the golf club playing golf on the land and, consequently, were not indulging in recreation "as of right".

The Supreme Court (Lords Walker, Hope, Rodger, Brown and Kerr) has now unanimously reversed the Court of Appeal and found in favour of the residents, holding that this "deference" does not prevent the residents indulging in recreation as of right. Lord Walker gave the leading judgment, but each of the four other Justices added their own opinions, which collectively give important guidance on the system of registration under the Commons Act - in particular making it clear that if landowners wish to avoid their land being re-classified, the onus is on them to resist or restrict residents from using the land for recreational purposes. [Read More]

Case comment: Martin v HM Advocate; Miller v HM Advocate [2010] UKSC 10: Part 2: Aristotle and Plato in the Supreme Court (Aidan O'Neill, Matrix/Ampersand)

What has caused the clear split in approach and unprecedented change in the tone of dissent which is seen in the decision in HM Advocate v. Martin and Miller ([2010] UKSC 10)? Clearly all the judges involved are conscientiously attempting to achieve the “right” result. As Lord Steyn noted in the 2002 Robin Cooke Lecture, “Democracy Through Law” ([2002] EHRLR 723 at 724):

“Where a tension develops between the views of the majority and individual rights a decision must be made and sometimes a balance has to be struck. The best way of achieving this purpose is for a democracy to delegate to an independent and impartial tribunal this adjudicative function. Only such a judiciary acting with principles of institutional integrity, and aided by a free and courageous legal profession, practising and academic, can carry out this task, notably in the field of fundamental rights and freedoms. Only such a judiciary has democratic legitimacy. The judge owes allegiance to nothing except the constitutional duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law. This is their role in the democratic governance of our countries. At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under men and women.” [read more]

Case comment: Martin v HM Advocate; Miller v HM Advocate [2010] UKSC 10: Part 1 (Aidan O'Neill, Matrix/Ampersand)

The decision of the UK Supreme Court in HM Advocate v. Martin and Miller [2010] UKSC 10 is the first case - in the ten years of the devolution settlement to date - in which the top court in the UK has had to determine the validity of Scottish legislation on grounds other than whether or not it is in compliance with Convention rights. The issue in Martin/Millar is a classic issue of constitutional law properly so called – namely whether or not the Scottish Parliament has remained within its devolved competence in passing section 45 of the Criminal Proceedings etc (Scotland) Act 2007 or whether it has improperly strayed into areas reserved to the UK Parliament and hence acted beyond the powers given to it under the Scotland Act 1998. The answer - according to three of the five judge bench - is that the Scottish Parliament in this case acted intra vires. But two of the bench disagree, and say that it acted ultra vires when making this provision. [read more]

In the Supreme Court w/c 8 March 2010 [updated] (Blog Editorial)

The Supreme Court will hear one appeal this week. This is the Scots civil appeal in the ease of Farstad Supply AS v Enviroco Limited will be heard on Tuesday and Wednesday by a bench consisting of Lords Phillip, Hope, Rodger, Mance and Clarke. The appeal is from a decision of the Inner House in relation to a claim arising out of a charterparty agreement, and the interpretation of s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 in relation to contributory negligence. Our case preview can be found here. The case details on the Supreme Court website can be found here.

Two judgments have been announced for next Wednesday. First, in the case of Agbaje v Akinnoye-Agbaje - the first matrimonial finance case to be heard by the Supreme Court, heard on 3-4 November 2009 and the oldest outstanding case. Our case preview can be found here. Second, there is the case of RTS Flexible Systems Limited v Molkerei Alois Muller Gmbh & Company KG - a case concerning a letter of intent. The case was heard on 2 December 2009. Our case preview is here. [read more]

Case Preview: Farstad Supply A/S (Appellant) v Enviroco Limited & Another (Respondents) (Scotland) (Claudette Sterling, Olswang)

The two-day hearing in this case will begin on Tuesday, 9 March 2010 to consider an appeal from a decision of the Inner House of the Scottish Court of Session in relation to a claim arising out of a charterparty agreement between the parties, and the interpretation of s.3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the "Act") as it relates to contributory negligence. The appeal will seek to clarify whether the provision as set out in the charterparty agreement relates to an indemnity clause or an exclusion clause.

Farstad, the owners of an oil rig supply vessel had chartered a vessel, the 'MV Far Service', to Asco. Enviroco was a contractor appointed to clean the oil tanks in the vessel. While the oil tanks were being cleaned in Peterhead harbour, a fire broke out resulting in a fatality and causing considerable damage. The fire was caused when an Enviroco employee inadvertently caused oil to flow into the engine room near hot machinery. [read more]

Lord Phillips in America and other News [updated] (Blog Editorial)

On Monday and Tuesday of this week 10 of the 11 justices were sitting when the Court, for the first time, dealt with two appeals simultaneously. The missing Justice was the President of the Court, Lord Phillips. He is on a visit to the United States. The Washington Briefs blog reports that he met with the justices and attended Wednesday’s argument. Chief Justice John G. Roberts Jr. acknowledged Lord Phillips’ presence in the courtroom before the argument began. Thank you to Lawrence Hurley for drawing this to our attention.

The argument was in the foreign sovereign immunity case of Samantar v. Yousuf. The Court considered whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act extends to an individual acting in his official capacity on behalf of a foreign state and, if so, whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity. A preview of the case on ScotUS Blog can be found here. In accordance with the US practice (and that of ScotUS Blog) a lot of information is already available about the hearing. A transcript can be found here and an analysis of the day's arguments here. [read more]

New Judgment: Martin v HM Advocate; Miller v HM Advocate [2010] UKSC 10 (Matrix Legal Information Team)

The appellants appealed against the decision that the increase in the sentencing power of Sheriffs sitting summarily by the amending provisions of the Criminal Proceedings etc (Reform) Act 2007, s 45, was within the Scottish Parliament’s legislative competence.

Appeal dismissed by a 3-2 majority (Lords Rodger and Kerr dissenting). The provision in question was within the legislative competence of the Scottish Parliament. Applying rules laid down in the Scotland Act 1998, s 29 and Sch 4, Pt 1, the majority reasoned that: (1) the purpose of s 45 was to modify Scots criminal law as defined in s 126(5) of the 1998 Act; (2) that the purpose of s 45 was to make the law apply consistently to reserved matters and otherwise; and (3) the rule that s 45 modified was not special to a reserved matter. The minority argued that the rule modified by s 45 was special to a reserved matter.

For judgment, please download: [2010] UKSC 10
For the Court’s press summary, please download: Press Summary
please download: For a non-PDF version of the judgment, please visit: BAILII