This Week In the Supreme Court – w/c 29th November 2021

Hearings in the Supreme Court are now shown live on the Court’s website.

On Tuesday 30th November and Wednesday 1st December the Court will hear the case of Bloomberg LP v ZXC, at 10:30 in Courtroom One. The Court will hear submissions on Whether, and to what extent, a person who has not been charged with an offence can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities. The judgment being appealed is [2020] EWCA Civ 611.

 

On Wednesday 1st December, the Court will hand down judgment in Fratila and another v Secretary of State for Work and Pensions. This appeal concerns the entitlement of EU citizens to UK benefits in light of UK’s withdrawal from the EU (“Brexit”). The Supreme Court is asked to consider: 1. whether a person with no EU law right to reside in an EU Member State is entitled to rely on the prohibition on nationality discrimination contained in Article 18 of the Treaty on the Functioning of the European Union (“TFEU”); and 2. the proper approach to the distinction between direct and indirect discrimination and whether indirect discrimination may, in the circumstances of the present case, be objectively justified. The judgment being appealed is [2020] EWCA Civ 1741.

 

On Thursday 2nd December the Court will hear the case of Guest and another v Guest, at 10:30 in Courtroom One. The appeal raises questions about the proper approach to granting relief under the doctrine of proprietary estoppel. The Supreme Court is asked to decide:(1) Whether a successful claimant’s expectation, in this case of inheritance of a family farm, was an appropriate starting point when considering a remedy; and (2) Whether the remedy granted, namely payment of a lump sum which would in effect result in the sale of the farm, went beyond what was necessary in the circumstances. The judgment being appealed is [2020] EWCA Civ 387.

 

A full list of the cases scheduled for the Michaelmas Term can be found here.

The following Supreme Court judgments remain outstanding: (As of 29/11/2021)

The Law Debenture Trust Corporation plc v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) Nos. 2 and 3, heard 9-12 December 2019
BTI 2014 LLC v Sequana SA and Ors, heard 4 May 2021.
Bott & Co Solicitors v Ryanair DAC, heard 20 May 2021
In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland), In the matter of an application by Mary McKenna for Judicial Review (Northern Ireland), and In the matter of an application by Francis McGuigan for Judicial Review (Northern Ireland), heard 14-16 June 2021
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department and R (on the application of The Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department) (Expedited), heard 23 and 24 June 2021
R (on the application of Elan-Cane)  v Secretary of State for the Home Department, heard 12 and 13 July 2021
Maduro Board of the Central Bank of Venezuela v Guaidó Board of the Central Bank of Venezuela, heard 19 to 22 July 2021.
Basfar v Wong, heard 13th-14th October
Her Majesty’s Attorney General v Crosland, heard 18th October
Secretary of State for the Home Department v SC (Jamaica), heard 19th October
Commissioners for Her Majesty’s Revenue and Customs v Coal Staff Superannuation Scheme Trustees Ltd, heard 26th October
Harpur Trust v Brazel, heard 9th November 2021
FirstPort Property Services Ltd v Settlers Court RTM Company and others heard 10th November 2021
PWR (AP) v Director of Public Prosecutions and Akdogan and another (AP) v Director of Public Prosecutions heard 18th November 2021
Craig v Her Majesty’s Advocate (for the Government of the United States of America) and another heard 25th November 2021
Guest and another v Guest heard 3rd December 2021
Bloomberg LP v ZXC heard 30th November 2021

The UKSC Blog interviews Lord Leggatt

On 27 September 2021, Adam Kosmalski and James Warshaw, two editors of the UKSC Blog, met with Lord Leggatt to discuss his experiences in the UK Supreme Court. This was a fantastic opportunity for the UKSC Blog and provided a unique insight into the views of Lord Leggatt on subjects such as the impact of Covid-19 on the judicial system and the role of the UK Supreme Court, as well as offering a glimpse into the inner workings of daily life in the court. The UKSC Blog is very grateful to Lord Leggatt for allowing us this unique opportunity and would like to thank him for his time.

(A) The Role of the UK Supreme Court

What do you see the role of the UK Supreme Court as being within society?

“I see it very simply as being the court of final appeal in the United Kingdom for issues of law of general public importance. No more and no less than that.”

Since the inception of the Supreme Court, what would you say is the most significant decision that the court has made and the impact that it has had?

“I think there are various ways in which a decision can be significant. It can be significant because of the effect it has on people’s lives, or because it changes the understanding of how a particular area of law operates in a substantial way, or potentially because of its constitutional significance. But I suppose if you are judging by what has brought the court most into the public eye since its inception, then the most significant decisions have got to be the two Miller cases. Those are also the only two cases so far, I think, in which 11 justices have sat – it cannot be the full number of 12 just in case there is a division of opinion – although there wasn’t any in the second Miller case, as you know. In terms of their impact, I think the importance of both cases lies in reaffirming the sovereignty of Parliament, which is the fundamental principle upon which the British constitution rests and has done for several centuries.”

When there are a large number of justices deliberating, do you speak to each other about your conclusions?

“Yes, there’s always a discussion after every case, which starts with everybody giving their provisional view in turn, starting with the most junior member of the court – which was always me to begin with after I joined the court. After everybody has expressed their individual preliminary view, then there is a general discussion and sometimes, if necessary, we will have to reconvene for a further discussion later.”

(B) Risks to the Justice System

What (if any) do you view as the greatest risk to our justice system at the moment?

“I think it has to be the risk to criminal justice posed by the backlog of cases waiting for trial in the Crown Court. It is not something that the Supreme Court is directly concerned with, but it is a major problem for the justice system. There was already a big backlog of cases in the Crown Court before the pandemic, and of course that has made it much worse. But it is encouraging that some steps seem now to be taken to address it.”

Do you think virtual hearings can be used as a way to clear that backlog faster so that you don’t have to do as many hearings in person?

“I think there were attempts to try that during the pandemic, but a feature of Crown Court cases is that you have to have a jury, and it’s very hard to make that work remotely. Experiments were done in a virtual setting, but it is very hard trying to be a juror from home as your home circumstances may not be conducive to being in a virtual hearing. So, unfortunately, I think the answer there is to find courtrooms or alternative venues big enough to enable people to be spaced out, if necessary, but in the same place.”

(C) Impact on the Common Law

In your time as a judge, you have been keen to introduce the principle of good faith into English contract law, however, it is fair to say that the law has yet to reach a stage of settled clarity. Is this something you would like to resolve if you were given the chance?

“I don’t think it is a question for me to resolve, or for any individual judge to resolve. The development of the common law is a collective endeavour and I think the law on this question is going to continue to evolve for some time to come. So I think on this I would adopt the words of Chief Justice Holt, in the great case of Coggs v Barnard in 1703, when he said: “I have stirred these points, which wiser heads in time may settle.”

On the back of that last question, is there a fear of introducing uncertainty into black letter contract law, if such a principle were to be introduced?

“Yes, that is an objection and a point that is often made. Obviously, it is of value that the law should be certain, but I think first of all it would be wrong to exaggerate how much uncertainty there would be in a principle of good faith. At least in the way I conceive it, it is a fairly modest principle. Also, one can exaggerate, I think, the degree to which there is certainty in any event. For example, interpreting contracts often gives rise to questions which judges take different views about, and such cases sometimes reach the Supreme Court, so one cannot avoid uncertainty altogether, nor should one.”

As you mentioned in a speech a few years ago, Singapore has diverged from the position in England with the court explaining that a duty to negotiate in good faith was “consistent with the Asian tradition of promoting consensus wherever possible”. To what extent do you think cultural or historical influences shape such concepts in the law, and do you think it is important for the law to reflect such influences? Do you think the history and culture of England and Wales means we are unlikely to accept a general duty of good faith?

“That’s an interesting question. I think the whole of the common law is the product of history and culture, and I think it is natural that there will be variations in the way it is developed in different countries. Good faith is not a single or uniform concept – it is capable of being shaped by different cultures and historical traditions. So, in answer to your second question, I think the history and culture of England and Wales does mean that we are unlikely to accept, for example, a general duty of good faith of the kind that is embodied in the French Civil Code. But I don’t think that means there isn’t room for such a principle in English law, and indeed there has been such a principle in the past. It has actually played, for example, an important role in the development of English insurance law, so I don’t see why it shouldn’t again in our law in the future.”

You recently presided over an important decision, Uber BV and others (Appellants) v Aslam and others (Respondents), where you found against Uber on the status of Uber drivers as ‘workers’. Moving forward, as more industries and lines of work adapt to the ‘Uber’ model of work, do you think the issues discussed in the case will continue to be challenged and tested? In a sense this ruling might also be said to represent a form of judicial activism. Would you agree with this and, if so, is this a direction you see the court moving towards in the future?

“Well, there are two questions here. Dealing with your first question, ‘do I think the issues will continue to be challenged and tested?’, I hope the Uber decision has helped clarify the legal principles which determine whether an individual whose work is arranged through an online platform is a worker or an independent contractor. But there isn’t a single or uniform model of platform-based work, and I am sure that questions will continue to arise in other cases about how those principles are applied, and how people should be classified in situations which may have some resemblance to the Uber model but some differences as well.

On the second question, about judicial activism, I think it is worth remembering that the decision that drivers were workers was made by the employment tribunal; it was upheld by the Employment Appeal Tribunal, and then by the Court of Appeal. So I think it was hardly very surprising or revolutionary that the Supreme Court came to the same decision. What our judgment sought to do was to clarify the legal test and the conceptual underpinning, if you like, for the distinction between workers and independent contractors. I think if there was anything that might be said to be novel about the decision, it is really applying an approach which has been common in other areas of law, for example tax law, but maybe hasn’t been fully recognised in the field of employment law, that, where legislation has a clear purpose, it ought to be interpreted and applied, so far as it can be, in a way that gives effect to that purpose. So that was the underlying approach, but I don’t describe that as activism.”

(D) Life as a Judge in the UK Supreme Court

Would you say your philosophy studies at university have influenced you in your role as a judge?

“Yes, is the answer. I think four years spent studying philosophy before I started studying law has influenced my approach to the law, in that I am always trying to probe the theoretical assumptions and concepts that underpin legal doctrines. I often find myself thinking: ‘well, that is all well and good in practice, but how does it work in theory?’”

And how did you transition from a philosophy student to a lawyer?

“I ended up doing a year of graduate study in Philosophy at Harvard after I finished university in this country, which I spent studying Political and Legal Philosophy, which was kind of a route into law. I had a very inspiring teacher in America called Ronald Dworkin: he was a brilliant philosopher who had also practised as lawyer. He made me come to think at least at that time that law was applied philosophy. Of course, I discovered it isn’t most of the time; but occasionally it is, and I find that very intellectually exciting.”

Have your studies in America impacted your judicial approach?

“Again, the answer is yes. It has made me aware, throughout my career, that there are other ways of doing things, and other approaches to legal problems, than those that might be taken for granted in this country. The principle of good faith that you mentioned just now is a good example of that. The fact that in the United States a duty of good faith in the performance of contracts has been recognised for over a 100 years was something that made me question what had, recently at least, been treated as orthodox in English law on that subject.”

And would you read judicial findings in America to assist your thought process here in the UK?

“Yes, I do, sometimes. For example, in the Yam Seng case, where I raised the issue of good faith as a first instance judge, I looked at the US case law on the subject. I quite often find myself doing so.”

You took office as a UK Supreme Court Justice in April 2020. Has your experience so far been as you anticipated it would be?

“Well no, in that I was sworn in just after the start of lockdown and I hadn’t anticipated that I would spend my first 15 months as a justice on the court without actually sitting in a courtroom with my colleagues and that all the hearings would be remote! The first time I sat in court was in July this year. That wasn’t ideal, being new to the court and wanting to establish relationships with my colleagues. But apart than that, and in other ways, the experience has been all I could have hoped for and more in terms of the work.”

What do you think are the best and worst parts of your job?

“The best parts of the job are the intellectually challenging nature of the work, its extraordinary variety, its legal importance and the opportunity to contribute something to the development of the law at the highest level. I would struggle to think of the worst parts of the job. I can’t actually think of any negative aspects. I couldn’t in fact imagine a better job or one I would find as fulfilling as this one. It really is, as far as I’m concerned, the pinnacle of my life’s work.”

Have you ever changed your mind after delivering a judgment?

“Never is the answer, in the aftermath of giving the judgment. I don’t think the human mind works that way, or at least my mind doesn’t. If you have thought hard about a case and you have reached a conclusion on it and given what you believe are good reasons for your conclusion, I think you would be rather a fickle person if you then changed your mind. There’s also the fact that when I’ve finished a case I’m moving on to the next case and I’m not looking back to the one I’ve just completed.

On the other hand, that’s not to say I couldn’t reach a different decision now on a legal issue which I dealt with some time ago if it comes back in another case, differently argued. Indeed, that did happen in the business interruption insurance cases that we heard last December. I had sat as an arbitrator 10 years before in an arbitration which raised an issue that also arose in those cases. The decision of the arbitrators, of whom I was one, was appealed to the Commercial Court, and Lord Hamblen, who was then a judge in the Commercial Court, dismissed the appeal. When that issue arose again in the business interruption cases, we reached a different view, both of us, on the point, and had to say that our previous view was wrong. That was with the benefit of a lot of hindsight, and with new arguments. So, that’s the one case that I can think of in which I have changed my mind after originally delivering a judgment.”

What has been the most interesting case you have presided over?

“I’m assuming you mean since I’ve joined the Supreme Court. I find it difficult to say because I find all the cases interesting, but if you are making me pick out one, I will select the business interruption insurance case I just mentioned. This is because of the immediate relevance of the decision to businesses making claims right there and then arising from the pandemic on their insurance policies. The case had to be sped through the courts, which was done with impressive speed in about 9 months from issuing proceedings to a final decision in the Supreme Court. The case also raised a variety of interesting points of law in the field of insurance law, which was actually probably my main specialism as a barrister, which I haven’t had much opportunity to deal with on the bench. I found all that very interesting.”

And in your whole career as a judge, beyond the Supreme Court?

“Well, in a different way, the cases arising out of the Iraq war, where I was designated as the judge in charge of them when I was in the High Court. They were fascinating because of the range of difficult and often novel issues of law that they raised, and the extraordinary facts.”

On that point, as a barrister you specialised in insurance and more contractual corporate law. As a judge you obviously look at a wide range of issues. (1) How do you switch your approach and (2) Have you found that enjoyable?

“Yes, I’ve certainly found that enjoyable. One of the most interesting and enjoyable things about being a judge at every level is the variety of the work. I’m always interested in learning new things. I tried to do so as much as I could as a barrister. I was lucky when I started at the Bar that you could still do a wide range of work, even in predominantly commercial chambers. I did employment cases, libel cases, landlord and tenant cases, and so on – a broader range than would be possible now, I think. I tried to keep a broad practice, but it has got harder, as you know, as a practitioner. One of the great fascinations of being a judge is the opportunity to deal with different areas of law that are outside your main expertise.”

(E) Impact of Covid on the Judicial System

The pandemic has forced nearly all professions to adapt in unprecedented ways, and the judicial system is no exception. As such, a very formal institution has been made to embrace a certain degree of flexibility. Now, as we begin to approach our former normalcy, what changes would you like to keep? Are there any additional changes you would also like to make?

“As a result of the pandemic, the Supreme Court moved to using electronic bundles of documents for all hearings. That wasn’t something I was used to doing as a matter of routine, but I’ve come to appreciate the advantages over paper bundles, both in getting rid of the bulk of paper but also that it speeds up hearings because it is quicker for everybody to find the page. That practice will certainly continue.

I think with virtual hearings it was impressive that they were as good and effective as they were but, however good the technology is, it is never going to be quite as good as a live hearing, because you always lose some level of communication with any technology. So I am delighted that we are now starting to sit in court again. However, I expect there will be cases, some Privy Council hearings, where the parties are on the other side of the world and, even if there is a slight disadvantage in terms of the level of communication, it is an overall more efficient way of dealing with the case for them not to travel all the way to London but to do it by video link. So maybe that is something that will be here to stay.”

(F) A career in the legal profession

What have you found to be the key differences in terms of your daily work in your careers as a barrister and now as a judge?

“I loved the work when I was a barrister, but the work of being a judge is even better. A key difference for me is that the work is much less stressful. You don’t have emails arriving at all hours when you are on holiday expecting an immediate response, you don’t have clients’ expectations to manage. In court you can sit and listen to the arguments and occasionally ask a question, rather than having to be ready to deal with anything your opponent or the judge might raise. And although the workload is just as heavy on the bench, the pace of the work is more even, and it doesn’t have the same intense peaks that you have at the Bar. Generally, you feel, I think, that you have more control over your work and probably over your life.”

How do you manage when you’ve just heard a case and you’ve then got a judgment that you’ve probably been writing, how do you compartmentalise everything to get your thoughts in order?

“Well, that is a problem generally that you have to contend with as a judge. The essential thing is not to fall too far behind in writing your judgments. If you do, you are then coming back to cases long after the event, and the pressure builds up. So you have to try and be efficient. Inevitably I am still working on another judgment when I’ve finished a hearing, so I try and write some notes at least while its fresh and then hope to come back to it as soon as possible.”

Is there anything barristers and solicitors presenting the case can do that particularly assists you when you are writing a judgment? Is there one thing you could say that is very useful.

“No, I don’t think so. I mean obviously having the written case is important. I try to take a good note during the hearing, so I’ve got notes of the arguments. A transcript is useful; if there isn’t one, it’s useful that the hearings are all recorded, and I can find the bit on the video recording or ask my judicial assistant to find it and listen again to that bit of the argument. So I do not think there is anything more the lawyers involved can do. If there are points that arise after the hearing in our discussions, new points that weren’t raised, we can and do ask for additional written submissions on them.”

What have been the biggest challenges you have experienced in your career?

“Well, I think in the whole of my career, probably the biggest challenges I experienced were when I helped set up the Bar Standards Board as the new regulator for barristers. A large number of barristers viewed the new body with suspicion or possibly worse, because they thought they were having outside regulation imposed on a profession that had always been self-regulating. Whereas many outside the profession thought it was just the profession continuing to regulate itself with another name. So I found it quite difficult to be unpopular with everybody, although for opposite reasons.”

What advice would you give to aspiring lawyers?

“I find that a hard question because I am not really in the business of offering advice to people. But I think something that I found useful in my own experience was to observe senior lawyers who had been doing the job for quite a long time and watch how they did things, for example in court as advocates. If you see someone who is an expert that can be quite inspiring. Although it is never any good trying to imitate what they do yourself, because it is always harder than it looks and, anyway, what works for one person will not work for somebody else. Everybody has to find their own way of doing things well. You actually learn a lot more from watching things being done badly, because you can learn from seeing mistakes that everybody ought to avoid.”

(G) Quickfire Round

What is your favourite film and why?

“The Seventh Seal. It has been parodied a lot, but it is a profound and perfectly made film about the meaning of life in the face of death. You’ve got to watch it, if you haven’t already seen it. You also have to watch another film by Ingmar Bergman called Wild Strawberries, which is almost as good. Both were made, I think, in the same year I was born, 1957.”

What is your favourite novel and why?

“Bleak House. Apart from the satire on the law, the whole of human life is there, and it is Dickens’ writing at his virtuoso best.”

After a long day in court, what is your favourite restaurant to go to?

“After a long day at court, my favourite place to eat is at home. As for my favourite restaurant anywhere, my daughter lives in the San Francisco area, where she now works as a public defender, and whenever we go and see her we eat out a lot: there’s a restaurant in Berkeley, California, called Chez Panisse which I think is the best restaurant I’ve ever been to, created by a brilliant American chef called Alice Waters.”

If you were stranded on a desert island, what one item would you like to have on you?

“I am assuming for this that I do not need to choose something to help me stay alive and can choose something to while away the time! So, it has to be a book, and it has to be a book I can re-read, because I’d have time to read it multiple times. So it has to be a work of philosophy as far as I’m concerned. So I’ll choose what I think is the finest work of philosophy written in the English language, which is Hume’s ‘A Treatise of Human Nature’.”

You said you weren’t in the industry of giving out advice, but from the advice that you’ve been given, is anything that particularly resonated?

“I once met Lord Griffiths after he’d been hearing a case in the House of Lords and they had had in front of them that day someone called Bob Alexander, who at the time was one of the foremost advocates at the English Bar. Lord Griffiths said to me: “we had Bob Alexander in front of us today and he has a tremendous quality as an advocate”. I thought I am going to learn the secret to success at the Bar! And Lord Griffiths said: “He keeps his voice up! Some of us are getting on a bit and we’re rather hard of hearing, so the fact that he speaks loudly is wonderful because we can hear everything he says.” And, actually, I found that was rather useful advice, as judges sometimes do find it a bit hard to hear what people say, and unless they can hear you, you’re not going to get your points across.”

What lockdown pastime/hobbies have you picked up?

“The answer is a cat.”

New Judgment: A Local Authority v JB (by his Litigation Friend, the Official Solicitor) [2021] UKSC 52

On appeal from: [2020] EWCA Civ 735

The Respondent commenced proceedings in the Court of Protection seeking declarations under the Mental Capacity Act 2005 as to the Appellant’s capacity to consent to sexual relations. A question arose as to whether the judge should have regard to whether they had capacity to understand that the other person involved must give consent, and did in fact give and maintain consent throughout the act. The judge found that this was not relevant information for the purposes of determining if an individual had capacity to consent to sexual relations under the Act.

The Respondent appealed to the Court of Appeal. The Court of Appeal recast the relevant matter as whether the Appellant had the capacity “to engage in” rather than “consent to”, sexual relations. The Court of Appeal found that in deciding whether a person had the capacity to engage in sexual relations, a judge should have regard to whether that person can understand that the other person involved must be able to consent and give and maintain consent. The Respondent’s appeal was therefore allowed. The Appellant, by his Litigation Friend, the Official Solicitor, appealed to the Supreme Court on several grounds.

HELD – Appeal dismissed.

Ground 1

The Appellant argued that it was wrong to recast the relevant matter as whether he had capacity to “engage in” sexual relations because section 27(1)(b) of the Act, which sets out those decisions which cannot be made on behalf of a person, refers to “consenting to have sexual relations”. The Appellant argued that this section should be read as controlling the scope of section 2(1) of the Act.

The Court rejected this interpretation of the statutory scheme and found that the wording of section 2(1) of the Act is broad and flexible.

Ground 2

The Appellant argued that it was not relevant to look at whether a person understood that the other person must be able to consent and maintain consent throughout the act. The Appellant argued that this interpretation of the Act inappropriately extended its purpose to protecting the general public, and moreover created an impermissibly “person-specific” test for capacity.

The Court rejected these submissions. First, the Court found that it was correct that the Court of Protection should have regard to the aim of protecting members of the public, as well as the person who may lack capacity. Second, the Court found that the test in section 2(1) was decision-specific, not person-specific.

Ground 3

The Appellant argued that to have regard to whether a person had capacity to understand that the other person must be able to consent and must in fact consent before and throughout the sexual relations creates an impermissible difference between the civil and criminal law.

The Court found that no impermissible difference arose, and that there were strong policy justifications for any higher standard in the civil law test for consent.

Ground 4

The Court refused permission to raise a ground relating to compatibility with Article 8 ECHR, but nevertheless found the operation of the Act to be compatible.

Ground 5

The Appellant argued that the Court of Appeal’s test for capacity to engage in sexual relations was inconsistent with article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities, which provides for recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

The Court rejected this argument as there is no separate standard for persons with disabilities.

 

For a PDF of the judgment, please see: Judgment (PDF)

For a non-PDF version, please see: Judgment on BAILII (HTML version)

For the Press Summary, please see: Press summary (HTML version)

If you would like to watch the hearing, use the links below:

Watch hearing

15 July 2021
Morning session
Afternoon session

 

This Week In the Supreme Court – w/c 22nd November 2021

Hearings in the Supreme Court are now shown live on the Court’s website.

On Wednesday 24th November, the Court will hand down judgment in A Local Authority v JB (by his Litigation Friend, the Official Solicitor) (AP). The Court was asked to decide on the following question: To have capacity to decide to have sexual relations with another person, does a person need to understand that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity? The judgment appealed is [2020] EWCA Civ 735, and hand-down will be at 9:45 in Courtroom 3.

On Thursday 25th November, the Court will hear the case of Craig v Her Majesty’s Advocate (for the Government of the United States of America) and another, at 10:30 in Courtroom One. The Court will hear submissions on whether the failure to bring into force certain amendments to the Extradition Act 2003 in Scotland gave rise to a breach of article 8 of the European Convention on Human Rights. The judgment being appealed is [2020] HCJAC 22.

A full list of the cases scheduled for the Michaelmas Term can be found here.

The following Supreme Court judgments remain outstanding: (As of 22/11/2021)

The Law Debenture Trust Corporation plc v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) Nos. 2 and 3, heard 9-12 December 2019
BTI 2014 LLC v Sequana SA and Ors, heard 4 May 2021.
Bott & Co Solicitors v Ryanair DAC, heard 20 May 2021
In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland), In the matter of an application by Mary McKenna for Judicial Review (Northern Ireland), and In the matter of an application by Francis McGuigan for Judicial Review (Northern Ireland), heard 14-16 June 2021
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department and R (on the application of The Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department) (Expedited), heard 23 and 24 June 2021
R (on the application of Elan-Cane)  v Secretary of State for the Home Department, heard 12 and 13 July 2021
Maduro Board of the Central Bank of Venezuela v Guaidó Board of the Central Bank of Venezuela, heard 19 to 22 July 2021.
Basfar v Wong, heard 13th-14th October
Her Majesty’s Attorney General v Crosland, heard 18th October
Secretary of State for the Home Department v SC (Jamaica), heard 19th October
Commissioners for Her Majesty’s Revenue and Customs v Coal Staff Superannuation Scheme Trustees Ltd, heard 26th October
Harpur Trust v Brazel, heard 9th November 2021
FirstPort Property Services Ltd v Settlers Court RTM Company and others heard 10th November 2021
PWR (AP) v Director of Public Prosecutions and Akdogan and another (AP) v Director of Public Prosecutions heard 18th November 2021
Craig v Her Majesty’s Advocate (for the Government of the United States of America) and another heard 25th November 2021

Open post
redkite solicitors

Redkite Solicitors acquire Bridgend-based firm

The ever growing legal firm has recently acquired David & Snape, further expanding the company with 14 offices and 180 staff. Redkite is one of the largest law firms in Wales and the South West, previously consisting of 12 offices and 150 employees.

David & Snape, which has been trading since 1929, will now be able to offer increased specialism due to its incorporation with Redkite. Their focus being on litigation, contentious probate and employment law.

Redkite Solicitors Porthcawl will provide an improved service to the area due to the acquisition. The office, located on Lias Road, will benefit from an increased investment in IT.

An improved service for Bridgend will also be seen, as Redkite Solicitors Bridgend will also benefit from the improved IT. The office is located on South Street and will continue to trade after the acquisition.

The new acquisition will also benefit from the fact that Redkite Solicitors is regulated by SRA.

The Solicitors Regulation Authority ensures that:

  • The firm can provide all types of law, including reserved legal activists
  • Everyone working in the firm must follow SRA rules
  • If things go wrong, the firm must have insurance cover
  • If things go wrong and your money is lost, the SRA fund may be able to reimburse you
  • If things go wrong you may be able to get your documents and money back

The offices in Porthcawl and Bridgend are now regulated by the SRA due to the acquisition. Meaning that customers in these areas will benefit from this protection.

The acquisition of David & Snape by Redkite, is contributing to the Redkite’s ambitious growth strategy. The firm, which is headquartered in Carmarthen, has undertaken a period of rapid expansion which has allowed Redkite Solicitors to double its turnover to over £9 million since 2017. This latest acquisition is predicted to increase this turnover to £10.5 million.

Other firms that Redkite Solicitors have recently made deals with that have contributed to its growth are:

  • Charles Crookes, based in Cardiff and Brecon
  • Harris Arnold, based in Swansea
  • Phoenix Legal Group, based in Gloucestershire
  • Orme and Slade, based in Ledbury

New jobs at the Spilman Street based office in Carmarthen have also been created by these new acquisitions. The team in Carmarthen provides finance and back-office services to Redkite’s offices in Brecon, Cardiff, Carmarthen, Dursley, Haverfordwest, Ledbury, Pembroke, Stonehouse, Stroud, Swansea, Tenby and Whitland.

Neil Walker, chief executive of Redkite, said:

“Redkite Solicitors has been helping individuals, families and businesses across England and Wales resolve their legal issues for over one hundred years. We have built our heritage and reputation by listening to local communities and developing services that meet their needs.

“As a law firm rooted in the local communities it serves, David & Snape is the perfect fit for us as we expand our footprint across Wales and beyond. It fits perfectly with our strategy of providing the best quality legal advice from high street locations.

“The expert teams based in the Bridgend and Porthcawl offices will continue to provide the same quality service to loyal clients, while also offering a more extensive range of legal services.

“We are delighted with the acquisition and the possibilities it brings. We are also pleased that this expansion has resulted in new jobs in Carmarthen, demonstrating our continued commitment to investing in our operations in Wales.”

Ryan David, previously a Partner at David & Snape, is now a Partner with Redkite. Commenting on the deal, he said:

“We are also incredibly excited about joining forces with such an ambitious and well-regarded legal business and brand. This deal means we will be able to offer our clients a broader range of specialist legal services and an improved service through more effective deployment of IT solutions.

“We have always been driven by providing the best possible service to our clients, and we look forward to providing a more holistic service as a result of this deal.”

Case Comment: Kabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48

In this post, Richard Bamforth, Jessica Foley, and Julia Czaplinska-Pakowska of CMS comment on the UK Supreme Court’s decision in Kabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48, which delivered further guidance to commercial parties and arbitration practitioners on the issue of the governing law of arbitration agreements.

On 27 October 2021, the UK Supreme Court upheld the decision of the Court of Appeal in Kabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48, finding that a general choice of law clause in a written contract containing an arbitration agreement will normally be a sufficient indication of the law governing that arbitration agreement. Applying English law, the court further held that the contract subject to the dispute had not been novated such as to make a third party subject to the arbitration agreement, in the light of the No Oral Modification clause in the contract. Lastly, the Supreme Court considered that the Court of Appeal was correct in refusing the recognition and enforcement of the arbitral award by way of summary judgment, and that the first instance judge had been wrong to adjourn the enforcement decision pending the outcome of an annulment application in the French courts concerning the same award.

Whilst the decision may initially appear to have more deeply ingrained the conflicting approaches of the English and French courts to the issue of governing law of arbitration agreements, the court’s reasoning is based on a methodical analysis of the relevant choice of law rules. It also provides helpful confirmation of the English law approach to identifying the governing law of an arbitration agreement, following an earlier landmark decision by the Supreme Court on the same issue in Enka v Chubb [2020] UKSC 38.

Factual background and the tribunal’s decision

The underlying dispute arose out of a franchise agreement between Kabab-Ji SAL (Kabab-Ji), a Lebanese company, and Al-Homaizi Foodstuff Co WWL (AHFC), its Kuwaiti licensee. Following a corporate reorganisation, AHFC became a subsidiary of Kout Food Group (KFG), the respondent to the proceedings. The franchise agreement contained (i) an express choice of English law as the law of the main contract, (ii) an arbitration agreement providing for arbitration in Paris and (iii) a No Oral Modification clause.

Kabab-Ji referred its dispute with KFG to arbitration in Paris under the ICC Arbitration Rules. A majority of the tribunal decided that the question whether KFG was bound by the arbitration agreement was governed by French law, but that English law governed the question whether KFG had acquired substantive rights and obligations under the franchise agreement by a novation of the agreement from AHFC to KFG. The Tribunal then found that KFG was in breach of the franchise agreement and awarded Kabab-Ji damages.

KFG filed an annulment application with the French court (as the competent authority of the country in which the award was made). In the meantime, Kabab-Ji applied to the English court for the award to be recognised and enforced.

The English High Court judgment

The judge at first instance decided that the choice of English law in the franchise agreement constituted an express choice of law for the entire agreement, including the arbitration agreement. The judge also reached the provisional conclusion that, applying English law, the No Oral Modification Clause meant that there was no novation of the franchise agreement from AHFC to KFG, and Kabab-Ji had not satisfied the conditions for estoppel that would have precluded AHFC by its conduct from relying on the No Oral Modification Clause. However, the judge thought it was possible that further evidence might emerge in the course of the French proceedings that might alter this conclusion, and he therefore declined to make a final ruling on the point. He adjourned any further hearing until after the Paris Court of Appeal had decided KFG’s application to annul the award. Both parties appealed.

The Court of Appeal judgment

The Court of Appeal agreed with the lower court that the parties’ express choice of English law to govern the main contract was also an express choice of the same law to govern the arbitration agreement. Where there was no indication that the arbitration agreement was to be construed separately from the rest of the contract, the contract should be construed as a whole and the express choice of law applied to all its clauses. The express choice of Paris as the seat of the arbitration did not impliedly override this choice, since an implied provision cannot displace an express one.

The court also agreed with the judge at first instance that the contract had not been novated. However, it held that he had been wrong to refuse to make a final order. There was no real prospect that new evidence would come to light that would allow Kabab-Ji to satisfy the conditions for an estoppel. The recognition and enforcement of the award was refused. Kabab-ji appealed to the Supreme Court.

The French court judgment

In the meantime, in a conflicting judgment, the Paris Court of Appeal rejected KFG’s application to annul the award. KFG had argued that the arbitral tribunal did not have jurisdiction because KFG was not a party to the franchise agreement. In refusing to annul the award, the court found that French law, not English law, was the governing law of the arbitration agreement.

Indeed, the French courts have consistently held that the existence and validity of an arbitration agreement must be considered solely in the light of the requirements of international public policy, irrespective of any national law, even a law governing the form or substance of the main contract. The French courts instead apply substantive rules of international arbitration, including the “separability principle”. In this case, the court held that as the parties had not expressly agreed that English law would govern the arbitration agreement specifically, the tribunal was instead bound to apply the substantive law of the place of the seat of arbitration (French law). Under French law, KFG was bound by the arbitration agreement.

The Supreme Court  judgment

In the face of these diverging decisions, the Supreme Court was asked to decide on three issues, namely:

What law governs the validity of the arbitration agreement?
If English law governs, is there any real prospect that a court might find at a further hearing that KFG had become a party to the arbitration agreement contained in the franchise agreement?
As a matter of procedure, was the Court of Appeal justified in giving summary judgment refusing recognition and enforcement of the award?

The choice of law issue

The appeal was heard in June – July 2021, a few months after the Supreme Court handed down judgment in another significant case concerning the governing law of arbitration agreements  in Enka v Chubb [2020] UKSC 38. In that case, the Supreme Court set out a series of English law principles to be methodically applied whenever the question arises as to what law governs an arbitration agreement.

However, in the present case, the Supreme Court noted that, in its previous case, the question of governing law arose before any arbitration had taken place, and therefore the English common law rules for resolving conflicts of laws applied. However, in Kabab-ji, an arbitral award had been made, so the rules to be applied were those set out in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention), as transposed into English law by the Arbitration Act 1996. The relevant provision of the New York Convention – article V(1)(a) – can be found in section 103(2)(b) of the Arbitration Act, and states that “the recognition or enforcement of the award may be refused if the person against whom it is invoked proves (…) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made.”

The Supreme Court noted that it would be desirable, given the international status of the New York Convention, if the rules for determining whether there is a valid arbitration agreement were not only given a uniform meaning but were applied by the courts of the contracting states in a uniform way – a nod, perhaps, to the existence of conflicting decisions such as those in the history of this case. The court was not troubled by this for long, noting that “[i]t is apparent, however, that there is nothing approaching a consensus” on the question whether or when a choice of law for the contract as a whole constitutes a sufficient indication of the parties’ choice of law for the arbitration agreement, in particular where it differs from the law of the seat. The court considered that, therefore, “the English courts must form their own view”.

The court had regard to commentary provided at the conference at which the New York Convention was adopted, which indicated that an express agreement as to the law that is to govern the arbitration agreement is not required and that any form of agreement will suffice. On that basis, the court found it “difficult to resist” the conclusion that a general choice of law clause in a written contract containing an arbitration clause will normally be a sufficient indication of the law to which the parties subjected the arbitration agreement.

The court also recalled the principles that it set out in its previous case, noting that it would be “illogical” if the law governing the validity of the arbitration agreement were to differ depending on whether the question was raised before or after an award had been made.

The Supreme Court concluded that the effect of the clauses in the franchise agreement was “absolutely clear”. The agreement contained a typical governing law clause, providing that “this Agreement” shall be governed by the laws of England. Even without any express definition, the court considered that that phrase is ordinarily and reasonably understood to denote all the clauses incorporated in the contract, including the arbitration agreement. The Supreme Court found there was no good reason to infer that the parties intended to except the arbitration agreement from their choice of English law to govern all the terms of their contract. Therefore, the law applicable to the arbitration agreement was English law.

Addressing two arguments against this conclusion raised by Kabab-ji, the court noted that a reference in the franchise agreement to the arbitrator applying “principles of law generally recognised in international transactions” (i.e. UNIDROIT Principles of International Commercial Contracts) was a reference to the rules of law to be applied to the merits of the dispute, not the validity of the arbitration agreement. The court also rejected Kabab-ji’s contention that, as the parties should be presumed to intend that the arbitration agreement will be valid and effective, one should infer that the choice of English law does not extend to it if applying English law would invalidate it. This is the “validation principle”, which is a principle of contractual interpretation which presupposes that an agreement has been made. The court appeared to restrict the validation principle slightly, noting that it does not apply to questions of validity in the expanded sense in which that concept is used in article V(1)(a) of the New York Convention and section 103(2)(b) of the Arbitration Act to include an issue about whether any contract was ever made between the parties to the dispute.

The “party” issue

Having established that English law applied, the court then considered whether KFG had become a party to the arbitration agreement. The Supreme Court referred to the decision in MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24; [2019] AC 119, where the Supreme Court held that No Oral Modification clauses are legally effective. The court considered the various provisions and held that the clauses applied to termination of the franchise agreement (which was contemplated by Kabab-ji as part of the novation) as they did to amendments and modifications to the agreement. Yet such termination could only be effected in writing and if signed by or on behalf both of the parties, which had not been done.

The court also found that the requirements for estoppel from relying on No Oral Modification clauses as laid out in Rock Advertising had not been satisfied, and even if there was evidence supporting an estoppel against AHFC, that would not necessarily extend to KFG.

Accordingly, the court agreed with the Court of Appeal that as a matter of English law, there was no real prospect that a court might find at a further hearing that KFG had become a party to the arbitration agreement in the franchise agreement.

The procedural issue

Finally, the Supreme Court turned to the question whether the Court of Appeal was justified in giving summary judgment refusing recognition and enforcement of the award. The New York Convention provides that the recognition and enforcement of an award may only be refused if the party against whom it is invoked proves one or more grounds set out in article V(1)(a) to (e). The Supreme Court found that there is nothing in the New York Convention or the Arbitration Act which prescribes how the party is to prove the ground is satisfied, and it is for the English courts to decide how the ordinary judicial determination should be made in accordance with its own procedural rules, including the overriding objective under the Civil Procedure Rules. In some cases, this may involve a full evidential hearing and in others, where appropriate, a summary determination.

In fact, the Supreme Court suggested that summary determinations may be an entirely preferable way of achieving a speedy resolution, since in many cases the nature and extent of the relevant evidence will already be clear from the hearing before the arbitral tribunal. Using this procedure would be entirely consistent with the pro-enforcement policy of the New York Convention and its equivalent provisions in the Arbitration Act. Whether or not it is suitable will depend on the specific facts of the case.

As to whether the judge at first instance was correct to adjourn the decision on enforcement pending the decision of the French Court of Appeal, the Supreme Court evaluated situations in which it would be reasonable and favourable to adjourn a decision pending that of a court in another jurisdiction, and found that since the French Court of Appeal was deciding the matter on the basis of a different body of law (French law) and therefore its decision would have no bearing on that of the English courts (which would be applying English law), there was no valid reason to adjourn pending the decision of the French court.

Accordingly, the Supreme Court held that the Court of Appeal was justified in overturning the first instance decision to grant an adjournment and in giving summary judgment refusing recognition and enforcement of the award. The appeal was dismissed.

Comment

The decision in Kabab-Ji provides further reassuring clarity on how the governing law of the arbitration agreement is to be determined under English law where the governing law is not expressly stated in the arbitration agreement itself. The Supreme Court’s reasoning is consistent with its earlier decision on the same issue, albeit in the context of enforcement pursuant to the New York Convention, rather than considering the arbitration agreement before an award is rendered. These two cases reflect the commercial reality that in practice, when negotiating a contract, parties rarely distinguish between the arbitration agreement and the contract as a whole when deciding which governing law to choose for their agreements.

Commercial parties and arbitration practitioners should nonetheless bear in mind the diverging approach of the French courts (and indeed of other jurisdictions) and err on the side of caution by expressly stating the governing law of the arbitration agreement, specifically, in their contracts.

The Supreme Court also confirmed how the English courts will construe the scope of No Oral Modification clauses following Rock Advertising. Its refusal to recognise a novation by conduct, where the contract so clearly called for all amendments, modifications and any termination to be agreed in writing, provides a useful reminder to parties of the importance of adhering to the express provisions of their contract when seeking to amend its terms.

The indication of the Supreme Court as to the usefulness of the summary judgment procedure for deciding the recognition and enforcement of an arbitral award also helpfully recognises the fact that arbitration users often want a speedy enforcement process, and that a summary judgment is most likely to achieve that.

The Supreme Court’s decision on the procedural issue of adjournment is also noteworthy as a potential test to the doctrine of comity. However, the implications of this aspect of the decision should not be overstated. If the court had been required to consider Article V(1)(e) of the New York Convention (which provides a defence to enforcement where an award has been set aside by the courts of the seat of the arbitration) whilst such a set-aside application was pending before the French courts, the court would have been likely to grant an adjournment pending the decision of the French courts. However, the Supreme Court was presented only with an Article V(1)(a) defence, regarding the validity of the arbitration agreement, and was required only to apply English law.

As KFG has appealed the rejection of its set-aside application in the French Court of Appeal to the Court of Cassation, it will be interesting to see whether and the extent to which France’s highest court now seeks to bridge the gap.

This Week In the Supreme Court – w/c 15th November 2021

Hearings in the Supreme Court are now shown live on the Court’s website.

On Thursday 18th November, the Supreme Court will hear the combined appeals of PWR (AP) v Director of Public Prosecutions and Akdogan and another (AP) v Director of Public Prosecutions. These will be heard at 10:30 in Courtroom One. The Court will decide whether section 13(1) of the Terrorism Act 2000 creates a strict liability offence, and if so, whether it is compatible with Article 10 of the ECHR. The decision being appealed is [2020] EWHC 798.

A full list of the cases scheduled for the Michaelmas Term can be found here.

The following Supreme Court judgments remain outstanding: (As of 15/11/2021)

The Law Debenture Trust Corporation plc v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) Nos. 2 and 3, heard 9-12 December 2019
BTI 2014 LLC v Sequana SA and Ors, heard 4 May 2021.
Bott & Co Solicitors v Ryanair DAC, heard 20 May 2021
In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland), In the matter of an application by Mary McKenna for Judicial Review (Northern Ireland), and In the matter of an application by Francis McGuigan for Judicial Review (Northern Ireland), heard 14-16 June 2021
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department and R (on the application of The Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department) (Expedited), heard 23 and 24 June 2021
R (on the application of Elan-Cane)  v Secretary of State for the Home Department, heard 12 and 13 July 2021
A Local Authority v JB (by his Litigation Friend, the Official Solicitor) (AP), heard 15 July 2021
Maduro Board of the Central Bank of Venezuela v Guaidó Board of the Central Bank of Venezuela, heard 19 to 22 July 2021.
Basfar v Wong, heard 13th-14th October
Her Majesty’s Attorney General v Crosland, heard 18th October
Secretary of State for the Home Department v SC (Jamaica), heard 19th October
Commissioners for Her Majesty’s Revenue and Customs v Coal Staff Superannuation Scheme Trustees Ltd, heard 26th October
Harpur Trust v Brazel, heard 9th November 2021
FirstPort Property Services Ltd v Settlers Court RTM Company and others heard 10th November 2021

Case Comment: Reference by the Attorney General and the Advocate General for Scotland in relation to two Bills passed by the Scottish Parliament- United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and Reference by the Attorney General and the Advocate General for Scotland – European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42

 

In this article Joanna Clark, a Professional Support Lawyer at CMS, comments on the recent UK Supreme Court’s decision on the Scottish Parliament’s attempt to incorporate (1) the United Nations Convention on the Rights of the Child and (2) the European Charter of Local Self-Government into Scots law, and whether such actions are within the Scottish Parliament’s devolved competencies,  

Introduction

On 6 October 2021, the Supreme Court gave its decision on two references by the Attorney General and the Advocate General for Scotland (the “UK Law Officers”) in relation to two Bills that had been passed by the Scottish Parliament: (1) The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (“UNCRC Bill”) and (2) the European Charter of Local Self-Government (Incorporation) (Scotland) Bill (“ECLSG Bill”). Both Bills seek to incorporate international treaties into domestic Scots law that have been ratified by the UK, but not incorporated into domestic UK law.

The references, made under s 33(1) of the Scotland Act 1998, required the court to determine whether certain provisions in each of the Bills (namely ss 6, 19(2)(a)(ii), 20(10)(a)(ii) and 21(5)(b)(ii) of the UNCRC Bill and ss 4(1A) and 5(1) of the ECLSG Bill) were within the legislative competence of the Scottish Parliament.

It was not suggested by the UK Law Officers that the Scottish Parliament could not seek to incorporate these treaties into domestic law in some form, rather it was said that the Bills as drafted would place obligations on UK Government ministers and affect the UK Parliament’s power to make laws for Scotland in reserved areas which would be contrary to the devolution settlement. Accordingly, these should be sent back to the Scottish Parliament for appropriate amendments to be made.

The Bills

The UNCRC Bill

The Scottish Government has indicated its intention to take a number of steps to strengthen and develop the legal framework for human rights in Scotland and the UNCRC Bill represents one of the first of these steps.

The substantive rights in the UNCRC are wide-ranging. They include health, education and economic rights, equality and non-discrimination rights, freedom of expression, thought, religion and assembly rights, protection from exploitation and abuse, privacy rights, the right to play, and the right to participate in cultural and artistic life. The explanatory notes to the UNCRC Bill explain that the Bill takes a “maximalist approach” to the UNCRC, fully incorporating its terms subject only to limited amendments designed to address the issues of devolved competence.

The Scottish Government has stated its intention to incorporate other international human rights treaties into domestic Scots law. A government-led taskforce, the National Taskforce for Human Rights Leadership, published a report in March 2021, recommending, amongst other measures, the incorporation of four other international human rights treaties. These are the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Rights of Persons with Disabilities (CRPD).

The ECLSG Bill

The ECLSG Bill is a private members Bill introduced by Andy Wightman MSP (then of the Scottish Green Party) with the stated aim of strengthening the status and standing of local government. This sought to incorporate Articles 2-11 of the ECLSG into Scots law.

The issues before the court

The court focused on two issues:

Whether the Bills, in bestowing certain powers on the Scottish courts to scrutinise and interpret UK legislation, modify the terms of s 28(7) of the Scotland Act 1998 and are therefore outside the legislative competence of the Scottish Parliament; and

Whether certain provisions of the Bills required to be “read down” in order to come within legislative competence. In that regard, guidance was sought on s 101(2) of the Scotland Act 1998 which states that if a provision of an Act of the Scottish Parliament could be read as being outside legislative competence, that provision is to be “read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.”

The Decision

The court agreed with the UK Law Officers that the provisions which had been identified were outside the legislative competence of the Scottish Parliament.

These included:

Provisions stating that Acts of the UK Parliament were to be read and given effect in a way which was compatible with the UNCRC or ECLSG. The court was of the view that, as drafted, these provisions would require the courts to interpret UK statutory provisions in a way that would conflict with the meaning intended by the UK Parliament;

Provisions enabling the courts to make declarators of incompatibility or strike down provisions of Acts of the UK Parliament which were incompatible with the UNCRC or ECLSG. The court was of the view that, as drafted, these provisions would affect the power of the UK Parliament to make laws for Scotland; and

In the case of the UNCRC Bill, a provision making it unlawful for any public authority to act incompatibly with the UNCRC. It was accepted by the Lord Advocate that this particular provision was, on the face of it, plainly outside legislative competence. The Lord Advocate argued that it would be capable of being “read down” in terms of s 101(2) of the Scotland Act 1998, however, the court rejected this.

Quoting Lord Bingham (The Rule of Law (2010)), Lord Reed noted that “the law must be accessible and so far as possible intelligible, clear and predictable”. He also referred to various passages from case law including Lord Diplock’s observations in Fothergill v Monarch Airlines Ltd [1981] AC 251, 279:

Elementary justice or, to use the concept often cited by the European Court [of Justice], the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.”

Lord Reed stated that s 101(2) could not have been intended to enable the courts to rewrite provisions which were, on their face, unambiguously outside legislative competence. The limitations of a Bill should be clear upfront and should not require to be confirmed through corrective limitations imposed by the courts on a case-by-case basis.

Lord Reed also referred to the various safeguards within the Scotland Act 1998 which were designed to ensure the legislative competence of Bills. For example, s 31(1) requires the person in charge of the Bill to make a statement as to its legislative competence, s 31(2) requires the Presiding Officer of the Scottish Parliament to separately consider and determine the issue of legislative competence, and the Scottish Ministerial Code requires Bills to be cleared by the Scottish law officers. The approach suggested by the Lord Advocate to s 101(2) would circumvent those safeguards.

The court concluded that the two Bills would require to return to the Scottish Parliament for reconsideration and amendment.

Following the publication of the court’s decision, the Scottish Government has confirmed, in relation to the UNCRC Bill, that it will be proceeding with that Bill and, in relation to the ECLSG Bill, that it will liaise with the new designated MSP in charge of it on the best way forward.

Comment

One point that was not contested in these references was whether it was within the legislative competence of the Scottish Parliament to incorporate international human rights law into domestic Scots law. It will therefore be open to the Scottish Government to proceed with incorporation of the UNCRC and other treaties, subject to making it clear that the relevant legislation will apply only to devolved matters.

Questions have been raised as to whether the decision has implications for other future legislation, in particular, any Bill seeking to allow another independence referendum without the consent of the UK Government.

The devolution settlement reserves to the UK Parliament various aspects of the constitution, including “the Union of the Kingdoms of Scotland and England” (Scotland Act 1998, Sch 5, para 1(b)). The meaning of that provision is yet to be considered by the courts (Note: the Court of Session declined to opine on the matter in Keatings v Advocate General [2021] CSOH 16 on the basis that it was a hypothetical question in that case). Some argue that it means that any Bill seeking to hold an independence referendum without consent would be outside the legislative competence of the Scottish Parliament. Others argue that it would be within competence, since any referendum would not itself legally determine the question of independence but would simply invite the public’s views on the question. In this regard it may be worth noting these observations of Lord Reed in this decision on the proper approach to interpreting the Scotland Act 1998:

The Scotland Act must be interpreted in the same way as any other statute. The courts have regard to its aim to achieve a constitutional settlement and therefore recognise the importance of giving the Scotland Act a consistent and predictable interpretation, so that the Scottish Parliament has a coherent, stable and workable system within which to exercise its legislative power. That is achieved by interpreting the rules as to competence in the Scotland Act according to the ordinary meaning of the words used.”

New Judgment: Lloyd v Google LLC [2021] UKSC 50

On appeal from: [2019] EWCA Civ 1599

The question raised by this appeal is whether the Respondent can bring a claim against the Appellant in a representative capacity seeking compensation under section 13 of the Data Protection Act 1998 for damage allegedly suffered by a class of Apple iPhone users as a result of unlawful processing of their personal data. The claim is based on the factual allegation that, for several months in late 2011 and early 2012, the Appellant secretly tracked the internet activity of some 4 million of Apple iPhone users in England and Wales and used the data collected without the users’ knowledge or consent for commercial purposes (by enabling advertisers to target advertisements at users based on their browsing history). The DPA 1998 was in force at the time of the alleged breaches and applied to this claim.

The Respondent sought to rely on rule 19.6 of the Civil Procedure Rules, which allows a claim to be brought by (or against) one or more persons as representatives of others who have the “same interest” in the claim. The Respondent argued that the “same interest” requirement is satisfied in the present case and that this representative procedure can be used to recover a uniform sum of damages for each person whose data protection rights have been infringed, without having to investigate their individual circumstances. A sum of £750 per person was suggested which would produce an award of damages of the order of £3 billion.

Because the Appellant is a Delaware corporation, the claimant needs the court’s permission to serve the claim form outside the jurisdiction. The Appellant opposed the application on the grounds that: (1) damages cannot be awarded without proof that a breach of the requirements of the Act caused an individual to suffer financial damage or distress; and (2) the claim in any event is not suitable to proceed as a representative action. In the High Court Warby J decided both issues in the Appellant’s favour and therefore refused permission to serve the proceedings. The Court of Appeal reversed that decision. The Appellant then appealed to the Supreme Court.

 

HELD – The Supreme Court unanimously allowed the appeal and restored the order made by the judge.

 

The Court considered the scope of the representative procedure and endorsed the view that it is a “flexible tool of convenience in the administration of justice”. It is even more appropriate now in modern conditions including the development of digital technologies which have greatly increased the potential for mass harm for which legal redress may be sought.

The attempt to recover damages without proving either what, if any, unlawful processing of personal data occurred in the case of any individual or that the individual suffered material damage or mental distress as a result of such unlawful processing was unsustainable. The Court held that, in these circumstances, the claim could not succeed and permission to serve the proceedings outside the jurisdiction was rightly refused by the judge.

 

For a PDF of the judgment: Judgment (PDF)

For the Press Summary: Press summary (HTML version)

For a non-PDF version of the Judgment: Judgment on BAILII (HTML version)

 

To watch the hearing, see below:

28 Apr 2021
Morning session
Afternoon Session

29 Apr 2021
Morning session
Afternoon Session

New Judgment: Alize 1954 and another v Allianz Elementar Versicherungs AG and others [2021] UKSC 51

On appeal from [2020] EWCA Civ 293

This appeal concerned the scope of a shipowner’s obligation to exercise due diligence to make a vessel seaworthy, and in particular whether negligent passage planning may render a vessel unseaworthy or whether it is excepted as involving negligent navigation.

The Appellants are the owners of a container ship which grounded on a shoal outside of the buoyed fairway shortly after leaving port. The Admiralty judge found that the vessel’s defective passage plan was causative of the grounding and that this involved a breach of the carrier’s seaworthiness obligation under article III rule 1 of the Hague Rules. The decision was upheld by the Court of Appeal. The Appellants contend that the decisions of the courts below were wrong, that the vessel was not unseaworthy and/or due diligence was exercised, and that any negligence in passage planning was a navigational fault which is exempted under article IV rule 2(a) of the Hague Rules.

HELD – The Supreme Court unanimously dismissed the appeal.

Issue 1: Did the defective passage plan render the vessel unseaworthy for the purposes of article III rule 1 of the Hague Rules?

The Court rejected the Appellants’ argument that there is a category-based distinction within the Hague Rules between the seaworthiness and the navigation or management of the ship. They are not mutually exclusive. If the vessel is unseaworthy then it can make no difference whether negligent navigation or management is the cause of the unseaworthiness or is itself the unseaworthiness. Seaworthiness is not limited to physical defects in the vessel and her equipment; it extends, for example, to documentary matters, to the knowledge and skill of the crew, to the vessel’s systems and sometimes to the vessel’s cargo or trading history.

The Court confirmed that the well–established prudent owner test, namely whether a prudent owner would have required the relevant defect to be made good before sending the vessel to sea had he known of it, is an appropriate test of seaworthiness. It further confirmed that the fact that a defect is remediable may mean that a vessel is not unseaworthy.

The Court held that on the proper interpretation of the Hague Rules, the article IV rule 2 ‘nautical fault’ exception cannot be relied upon in relation to a causative breach of the carrier’s obligation to exercise due diligence to make the vessel seaworthy. The fact that the defective passage plan involves “neglect or default” in “the navigation of the ship” within the article IV rule 2(a) exception is no defence to a claim for loss or damage caused by unseaworthiness.

Issue 2: Did the failure of the Master and second officer to exercise reasonable skill and care when preparing the passage plan constitute want of due diligence on the part of the carrier for the purposes of article III rule 2 of the Hague Rules?

The Appellants’ alternative case was that, so long as the carrier has equipped the vessel with all that was necessary for her to be safely navigated including a competent crew, the crew’s failure to safely navigate the ship is not a lack of due diligence by the carrier. It is outside of the carrier’s orbit of responsibility.

The Court held that the obligation on the carrier to exercise due diligence to make the vessel seaworthy requires that due diligence be exercised in the work of making the vessel seaworthy, regardless of who is engaged to carry out that task.

The carrier is liable for a failure to exercise due diligence by the master and deck officers of his vessel in the preparation of a passage plan for the vessel’s voyage. The carrier’s seaworthiness obligation in relation to passage planning is not limited to providing a proper system for such planning.

 

Judgment (PDF)

Press summary (HTML version)

Judgment on BAILII (HTML version)

 

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