New Judgment: Her Majesty’s Attorney General v Crosland [2021] UKSC 58

On appeal from: [2021] UKSC 15

The court unanimously dismissed this appeal concerning whether the Supreme Court was wrong to decide that the appellant’s disclosure of the result of the Heathrow appeal, in breach of an embargo on the Court’s judgment, constituted a contempt of court. Furthermore, did the Court then wrongly impose a fine of £5,000 on the appellant, and wrongly order him to pay the respondent’s costs in the sum of £15,000?

The appellant disclosed the outcome of a judgment of the Supreme Court to the public while it was still in draft and subject to embargo, knowing that such disclosure was prohibited. He had formed the view that it was misleading and that breaching the embargo would generate a higher level of publicity for his complaints. The respondent made an application to the Supreme Court alleging that the appellant had acted in contempt of court. On 10 May 2021, a three–justice panel of the Supreme Court (the “First Instance Panel”) found the appellant in contempt of court and imposed a fine of £5,000 and ordered him to pay a proportion of the Attorney General’s costs.

The following issues arise. First, whether the Supreme Court has jurisdiction to entertain an appeal against orders of the Supreme Court acting as a court of first instance in the exercise of its contempt jurisdiction. Second, whether the First Instance Panel was correct to hold Mr Crosland in contempt of court and to order the amount of costs that it did.

 

Held: The court unanimously dismissed this appeal.

Reasons for the Judgment:

Jurisdiction

The majority holds that section 13 of the Administration of Justice Act 1960 gives a right of appeal from an exercise by the Supreme Court of its contempt jurisdiction, acting at first instance. Section 13 gives such a right of appeal from any court (subject to irrelevant exceptions) and expressly includes the Supreme Court within the meaning of ‘court’. It is not a conceptual impossibility to appeal from one panel of the Supreme Court to another larger panel.

Lady Arden considers that the Supreme Court does not have jurisdiction under section 13 to hear the appellant’s appeal. She considers that the Supreme Court has inherent jurisdiction to review an order should it consider that there has been an injustice of a particularly serious nature. The threshold of seriousness is not passed in this case and the inherent jurisdiction should not be exercised.

Merits

The First Instance Panel made no material error in their consideration of the factual context of the appellant’s actions. They were right to find that the appellant’s conduct amounted to a criminal contempt of court. While the embargo and finding of contempt interfered with the appellant’s right to freedom of expression under Article 10 of the European Convention on Human Rights, that interference was justified within the terms of Article 10 because it was prescribed by law and was in pursuit of a legitimate aim. It was also proportionate because it did not prevent the appellant from expressing publicly his disagreement with the judgment at any point after its hand down.

The First Instance Panel was an independent and impartial tribunal and there was no apparent bias. The decision to bring proceedings for contempt was taken by the respondent, not by the Supreme Court itself. Further, the First Instance Panel did not include any of the justices who sat on the appeal relating to the judgment which was disclosed.

The respondent was not in breach of any obligation to the appellant by failing to disclose to him that the Government may have been in breach of a court embargo in July 2020. That related to a separate case and was not relevant to the appellant.

The ruling on costs was not oppressive or unjust. The award of costs is a matter for the discretion of the First Instance Panel and they made no error of legal principle which would warrant setting aside their order. Nor did the court give reason to the appellant to believe that costs would be decided in accordance with the rules for criminal proceedings.

 

Watch the hearing:

18 October 2021  Morning session

 

For judgment, please see:  Judgment (PDF)

For press summary, please see: Press summary (HTML version)

For non-PDF version of the judgment, please see: Judgment on BAILII (HTML version)

 

 

New Judgment: Maduro Board of the Central Bank of Venezuela v Guaidó Board” of the Central Bank of Venezuela [2021] UKSC 57

On appeal from: [2020] EWCA Civ 1249

The Supreme Court unanimously allowed this part of this appeal concerning which political party of Venezuela is entitled to give instructions on behalf of the Central Bank of Venezuela. In May 2018, a Presidential election took place in Venezuela, which the incumbent, Mr Nicolás Maduro Moros, claimed to have won. Her Majesty’s Government in the United Kingdom (“HMG”) considered that this election was deeply flawed. On 15 January 2019, the Venezuelan National Assembly announced that Mr Juan Gerardo Guaidó Márquez was the interim President of Venezuela. On 4 February 2019, the then UK Foreign Secretary declared that the United Kingdom recognises Mr Guaidó “as the constitutional interim President of Venezuela, until credible presidential elections can be held”. That statement was reiterated by HMG in a subsequent letter and in statements made to the Court on behalf of the Foreign Secretary in these proceedings.

The Maduro Board and the Guaidó Board both claim to act on behalf of the Central Bank of Venezuela (the “BCV”). The Appellant Board claims to have been appointed to represent the BCV by Mr Maduro as President of Venezuela. The Respondent Board claims to be an ad hoc board of the BCV, appointed by Mr Guaidó as interim President of Venezuela under a ‘transition statute’ passed by the Venezuelan National Assembly. The Venezuelan Supreme Tribunal of Justice (the “STJ”) has issued several judgments holding that the transition statute is null and void. The Maduro Board and the Guaidó Board both claim to be exclusively authorised to act on behalf of the BCV, including in arbitration proceedings in the London Court of International Arbitration and in respect of gold reserves of about US$1.95 billion held by the Bank of England for the BCV. The central issue in this appeal is which of these two parties is entitled to give instructions on behalf of the BCV.

The Commercial Court ordered a trial of two preliminary issues. The first (the “recognition issue”) is whether HMG recognises Mr Maduro or Mr Guaidó and, if so, in what capacity and on what basis. The second (the “act of state issue”) is whether courts in this jurisdiction may consider the validity under Venezuelan law of (among other things) the appointments to the BCV board made by Mr Guaidó and the transition statute passed by the Venezuelan National Assembly.

At first instance the court held that HMG had conclusively recognised Mr Guaidó as Venezuela’s head of state. The judge further held that the validity of the transition statute and the appointments of Mr Guaidó engaged the act of state doctrine and were thus non–justiciable. The Maduro Board appealed successfully to the Court of Appeal on both issues. On the recognition issue, the Court of Appeal considered that HMG had recognised Mr Guaidó as the person entitled to be head of state (de jure) but had left open the possibility that it impliedly recognised Mr Maduro as in fact exercising some or all of the powers of head of state (de facto). It considered that this issue was best determined by posing further questions of the Foreign Commonwealth and Development Office and remitted the matter to the Commercial Court for this purpose. The Court of Appeal held that the act of state issue could not be answered at that stage without considering both whether HMG recognises Mr Guaidó as Venezuela’s head of state for all purposes and whether the STJ judgments should be recognised by courts in this jurisdiction.

 

Held: The Court unanimously allowed the appeal in part.

Reasons for the Judgment:

The recognition issue

Under the United Kingdom’s constitutional arrangements, the recognition of foreign states, governments and heads of states is a matter for the executive. Courts in this jurisdiction thus accept statements made by the executive as conclusive as to whether an individual is to be regarded as a head of state. This rule is called the ‘one voice principle’. Its rationale is that certain matters are peculiarly within the executive’s cognisance.

HMG’s statement was a clear and unequivocal recognition of Mr Guaidó as President of Venezuela, which necessarily entailed that Mr Maduro was not recognised as the President of Venezuela. Under the one voice principle, it is therefore unnecessary to look beyond the terms of HMG’s statement. The question of recognition in this case has also been unnecessarily complicated by the distinction between whom HMG recognises as Venezuela’s head of state and whom it recognises as head of government. The relevant matter in these proceedings is the identity of Venezuela’s head of state.

It follows that courts in this jurisdiction are bound to accept HMG’s statements which establish that Mr Guaidó is recognised by HMG as the constitutional interim President of Venezuela and that Mr Maduro is not recognised by HMG as President of Venezuela for any purpose.

The act of state issue

There are two aspects of the act of state doctrine with which this appeal is concerned. The first (“Rule 1”) is that the courts of this country will recognise and will not question the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state. The second (“Rule 2”) is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state. Although Rule 2 has been doubted, in light of the substantial body of authority in its support its existence should now be acknowledged. Furthermore, there is no basis for limiting Rule 2 to cases of unlawful executive acts concerning property, such as expropriation or seizures.

Rule 2 thus applies to an exercise of executive power such as Mr Guaidó’s appointments to the BCV’s board. However, there are several exceptions to the act of state doctrine, including for acts which take place outside a state’s territory, for challenges to acts which arise incidentally, and for judicial acts. The extra–territorial exception does not apply in this case because the relevant acts of appointment were made within Venezuela and were not in excess of the jurisdiction of Venezuela in international law. The incidental exception does not apply either, because these proceedings involve a direct attack upon the validity of Mr Guaidó’s appointments to the BCV’s board. However, judicial rulings of a foreign state are not subject to the act of state doctrine. For a court in this jurisdiction to decide whether to recognise or to give effect to the STJ judgments would therefore not engage the act of state doctrine. This is a matter which falls outside the preliminary issues and must therefore be remitted to the Commercial Court for further consideration. However, courts in this jurisdiction will refuse to recognise or give effect to foreign judgments such as those of the STJ if to do so would conflict with domestic public policy. The public policy of the United Kingdom will necessarily include the one voice principle which is a fundamental rule of UK constitutional law. As a result, if and to the extent that the reasoning of the STJ leading to its decisions that acts of Mr Guaidó are unlawful and nullities depends on the view that he is not the President of Venezuela, those judicial decisions cannot be recognised or given effect by courts in this jurisdiction because to do so would conflict with the view of the United Kingdom executive.

The transition statute is foreign legislation. Its validity may thus fall within Rule 1. There is no doubt about the existence of Rule 1, which would ordinarily prohibit challenges to the transition statute. However, the validity of the STJ judgments impugning the transition statute is not subject to the act of state doctrine. In any event, Rule 1 is not necessary to the analysis because, subject to the effect to be given to STJ judgments, Rule 2 precludes questioning Mr Guaidó’s appointments to the BCV’s board.

Courts in this jurisdiction will therefore (subject to the effect to be given to the STJ judgments) not question the lawfulness or validity of the appointments to the BCV board made by Mr Guaidó. However, it remains necessary to consider whether the STJ judgments should be recognised or given effect in this jurisdiction. The proceedings are remitted to the Commercial Court for it to do so.

 

For judgment, please see: Judgment (PDF)

For press summary, please see: Press summary (HTML version)

For non-PDF version of the judgment, please see: Judgment on BAILII (HTML version)

 

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19 Jul 2021          Morning session     Afternoon session

20 Jul 2021         Morning session     Afternoon session

21 Jul 2021         Morning session     Afternoon session

New Judgment: In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland) (Nos 1, 2 and 3) [2021] UKSC 55

On appeals from: [2019] NICA 13; [2019] NICA 46

Background

These appeals from the Court of Appeal in Northern Ireland concerned events which occurred in 1971 and 1972 during “the Troubles”. They concern the circumstances in which there is an obligation on the UK Government to investigate a death or allegation of torture or inhuman or degrading treatment under Articles 2 and 3 of the European Convention on Human Rights and the Human Rights Act 1999, and how to assess the independence of such investigations.

One appeal relates to the shooting of Ms Jean Smyth, who was fatally wounded by a bullet striking her head while she was a passenger in a car in Belfast on 8 June 1972 (the “McQuillan case”). Following the later discovery of military logs suggesting the possibility that the fatal shot was fired by a member of the British Army’s Military Reaction Force, the Chief Constable of the Police Service of Northern Ireland (‘The PSNI’) proposed to conduct a further investigation into Ms Smyth’s death. Before the proposed further investigation took place, Margaret McQuillan, Ms Smyth’s sister, issued judicial review proceedings seeking a declaration that the LIB was insufficiently independent to conduct the proposed further investigation of Ms Smyth’s death, in contravention of Article 2 of the Convention.

The other appeal (the “Hooded Men case”) relates to the ill-treatment of people who were detained by the security forces for interrogation in August 1971 by the Royal Ulster Constabulary. Fourteen men, who have become known as the Hooded Men and who included Francis McGuigan and Séan McKenna, were subjected to this treatment. Ireland brought an inter-state application to the European Commission of Human Rights and subsequently to the European Court of Human Rights against the UK regarding the treatment of the Hooded Men. In Ireland v United Kingdom (1979-80) 2 EHRR 25, the ECtHR determined that the Hooded Men’s treatment constituted inhuman and degrading treatment (but not torture) in breach of Article 3 of the Convention.

In 2014, RTÈ broadcast a documentary about the Hooded Men that referred to documents which, RTÈ said, were newly discovered and had not been before the Commission or ECtHR. Following the documentary, the PSNI concluded that there was not sufficient evidence to warrant a further investigation into the allegation. Separately, the Government of Ireland also made an application to the ECtHR for revision of its 1978 judgment, requesting that the finding of inhuman or degrading treatment be substituted by one of torture. The ECtHR dismissed the request. Mr McGuigan and the daughter of the late Séan McKenna then applied for judicial review of the PSNI’s decision.

 

 

HELD – The Supreme Court allowed the appeals by the Chief Constable for Northern Ireland, the Secretary of State for Northern Ireland and the Northern Ireland Department of Justice, upheld the decision of the Court of Appeal to quash the decision taken by the PSNI in relation to the Hooded Men case, but otherwise dismissed the applications for judicial review.

 

The first issue in both appeals concerned the temporal effect of the Article 2 and 3 rights in the Convention and under the HRA.

The Supreme Court considered and applied the test laid down in Brecknell v United Kingdom (2008) 46 EHRR 42, which determines whether the coming to light of new evidence might revive the investigative obligation under Article 2. In the McQuillan case it was common ground that the information in the military logs was sufficient to trigger a fresh investigative obligation. In the Hooded Men case, the Court held that the Brecknell test was not satisfied because the new material did not add significantly to the state of knowledge in 1978 or alter its substance.

The Court analysed the “genuine connection” test laid down in Janowiec, which addresses the situation where new evidence comes to light regarding a death which occurred before the relevant contracting state entered into the Convention or in relation to a claim by an individual, when that state recognised a right of individual petition to the ECtHR, if later. The Court concluded that, in the context of the HRA, the critical date for the application of the test was the date of the entry into force of the HRA on 2 October 2000. Applying the test, the Court concluded that it was not satisfied in either the McQuillan case or the Hooded Men case..

The Court held that, if Articles 2 and 3 had applied, the Court of Appeal in Northern Ireland would have been entitled to conclude that the proposed investigation into Ms Smyth’s death would not have been effective in the particular circumstances of that case because the Chief Constable of the PSNI had failed to explain how he proposed to secure the practical independence of that investigation. However, the Court of Appeal in Northern Ireland erred in concluding that an enquiry by the PSNI into the ill-treatment of Mr McGuigan and Mr McKenna would lack practical independence.

The Court also concluded that the PSNI was not under an obligation at common law or under section 32 of the Police (Northern Ireland) Act 2000 equivalent to the obligations in Articles 2 and 3 of the Convention. Furthermore, the Chief Constable did not create a legitimate expectation that the PSNI would undertake an investigation.

Finally, the Court found that the PSNI’s decision not to investigate further the allegation in the RTÈ documentary was based on a seriously flawed report, was therefore irrational, and fell to be quashed.

 

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

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

For an online version of the judgment, see: Judgment on BAILII (HTML version)

 

New Judgment: R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56

On appeal from: [2020] EWCA Civ 363 

The Supreme Court unanimously dismissed this appeal concerning whether the Court of Appeal was wrong in its conclusion that Her Majesty’s Passport Office’s policy does not unjustifiably breach articles 8 and 14 of the European Convention on Human Rights (“ECHR”).The policy in question holds that (i) an applicant for a passport must declare their gender/sex as being either male or female and (ii) a passport will only be issued bearing a male (“M”) or female (“F”) indicator in the gender/sex field on the face of the passport and will not be issued with an “unspecified” (“X”) gender marker.  

The appellant was born female but identifies as non–gendered. In 1995, the appellant contacted the UK Passport Authority to inquire whether it was possible for a passport to be issued without making a declaration of being male or female. The appellant was informed that it was not. The appellant accordingly applied for, and was issued with, a passport in which the gender was recorded as female. The appellant made similar inquiries in 2005 and in correspondence between 2010 and 2016, with similar results. 

In 2014, HMPO completed an internal review of gender marking in passports. It noted that there had been very few requests for a non-gendered (“X”) marking, other than from the appellant, and that UK legislation, including discrimination and equality legislation, is based on the categorisation of all individuals as either male or female. It stated that recognising a third gender would put HMPO “in isolation from the rest of government and society” and would result in administrative costs of about £2m being incurred. The Government repeated these points when it considered the issue in 2016. 

The appellant argues that the policy operated by HMPO contravenes the right to respect for private life which is guaranteed by article 8 of the European Convention on Human Rights (“the Convention”), either taken on its own or read together with the prohibition on discrimination in article 14. The High Court and the Court of Appeal rejected that argument. The appellant now appeals to the Supreme Court. 

 

Held: The Supreme Court unanimously dismissed the appeal.  

The central question is whether HMPO’s policy breaches the UK’s obligations under the Convention. There is no judgment of the European Court of Human Rights (“the European Court”) which establishes an obligation to recognise a gender category other than male or female, and none which would require the Secretary of State to issue passports without any indication of gender. In fact, there does not appear to have been any case before the European Court concerned with the application of the Convention to individuals who identify as non–gendered. 

Applying the principles established in the case law of the European Court, there has been no violation of the appellant’s Convention rights. The degree of prejudice to the appellant which is attributable to the unavailability of an “X” passport does not appear to be as serious as that suffered by the applicants before the European Court in the cases on which counsel for the appellant relied. The appellant’s interest in being issued with an “X” passport is outweighed by considerations relating to the public interest put forward by the Secretary of State, including the importance of maintaining a coherent approach across government to the question of whether, and if so in what circumstances, any gender categories beyond male and female should be recognised. It is clear that this is a matter in which states would be afforded a high degree of latitude by the European Court, having regard to the absence of any consensus amongst the states which are parties to the Convention, the complexity and sensitivity of the issue, and the need for a balance to be struck between competing private and public interests. 

The question of whether an applicant’s rights under the Convention have been violated is a question which the European Court answers for itself. When the European Court decides that there has been no violation of the Convention, because the relevant state has acted within the “margin of appreciation” afforded to it, it does not cede the function of interpreting the Convention to the states which are parties to the Convention, nor does it give their domestic courts the function of deciding whether the issue should be determined by the legislature, executive or the courts. States can of course create rights going beyond those protected by the Convention, but their power to do so exists independently of the Convention and is subject to their own established constitutional principles. Under those principles, as they apply in the United Kingdom, law-making is generally the function of the legislature. If the Human Rights Act were to be interpreted as giving judges the right to find breaches of Convention rights even where the European Court would hold that United Kingdom law was in conformity with the Convention, there would be a substantial expansion of the constitutional powers of the judiciary at the expense of Parliament. Parliament is unlikely to have intended to effect such an encroachment upon parliamentary sovereignty when it enacted the Human Rights Act.  

 

For judgment, please see: Judgment (PDF) 

For press summary, please see: Press summary (HTML version) 

For non-PDF version of the judgment, please see: Judgment on BAILII (HTML version) 

 

Watch hearing 

12 July 2021 Morning session Afternoon session 

13 July 2021 Morning session Afternoon session 

This Week in the Supreme Court – w/c 13th December 2021

This Week In the Supreme Court – w/c 13th December 2021 

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

On Monday 13th December the Court will hear Public Prosecutors Office of the Athens Court of Appeal v O’Connor (Northern Ireland). The case concerns whether when considering section 26(5) of the Extradition Act 2003, can a distinction properly be drawn between the actions of a person who has done everything reasonably possible to give notice of the appeal and the actions of that person’s solicitor who has not. The judgment being appealed is [2017] NIQB 77.  

 

On Wednesday 15th December, the court will hand down judgment in the following cases:  

In the matter of an application by Margaret McQuillan for Judicial Review (Nos 1, 2 and 3)  
In the matter of an application by Francis McGuigan for Judicial Review (Nos 1, 2 and 3) 
In the matter of an application by Mary McKenna for Judicial Review (Nos 1 and 2) 
In the Appeal (1) The extent to which the article 2 investigative obligation arising under the Human Rights Act 1998 applies retrospectively to deaths which occurred prior to the commencement of the Human Rights Act 1998; and (2) Whether the Legacy Investigations Branch of the Police Service of Northern Ireland is sufficiently independent to investigate and / or review the investigations into such deaths and what steps are necessary to ensure that the investigation / review meets article 2 standards and the point in time at which those steps must be taken. In the Cross Appeal (1) Whether the NI Court of Appeal erred in finding that there was no obligation to ensure that the investigation into the death in question was independent under (1) the common law; and (2) under the Police (Northern Ireland) Act 2000, s. 32(1)(d) read in conjunction with the Code of Ethics 2008 as contained in the Police Service of Northern Ireland (Conduct) Regulations 2008. The judgment on appeal is [2019] NICA 13 

 

R (on the application of Elan–Cane) v Secretary of State for the Home Department – this judgment will decide whether the Court of Appeal was wrong in its conclusion that Her Majesty’s Passport Office’s Policy that (i) an applicant for a passport must declare their gender/sex as being either male or female and (ii) a passport will only be issued bearing a male (“M”) or female (“F”) indicator in the gender/sex field on the face of the passport and will not be issued with an “unspecified” (“X”) gender marker does not unjustifiably breach articles 8 and 14 of the European Convention on Human Rights (“ECHR”). The judgment on appeal is [2020] EWCA Civ 363. 

 

The following Supreme Court judgments remain outstanding: (As of 13/12/2021) 

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 
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 

Fearn and others v Board of Trustees of the Tate Gallery heard 7th to 8th December 2021 
Public Prosecutors Office of the Athens Court of Appeal v O’Connor (Northern Ireland) heard 13th December 2021.   

 

New Judgment: R (on the application of Association of Independent Meat Suppliers and another) v Food Standards Agency [2021] UKSC 54

On appeal from: [2017] EWCA Civ 431

The Supreme Court unanimously dismissed this appeal concerned the operation of the European Union (“EU”) system for the inspection of meat products to ensure that proper health and safety standards are maintained. The facts of the case arose at a time when, pursuant to the Brexit transition arrangements, EU law was applicable. In 2019, the Supreme Court made a reference to the Court of Justice of the European Union (“CJEU”) on this issue, and the CJEU has now delivered its judgment. The Supreme Court now determines this appeal based on that judgment.

The background facts concerned a slaughtered bull which was declared by the Official Veterinarian (“OV”) on behalf of the respondent as meat unfit for human consumption. The bull’s owner (the appellant) challenged the OV’s opinion and claimed that – should they not surrender the carcass voluntarily – the OV would be required to seize the carcass under section 9 of the Food Safety Act 1990 (“section 9”) and take it before a Justice of the Peace (“JP”) to determine if it should be condemned. Under the section 9 procedure, the JP would have power to grant the owner compensation for the carcass if they disagreed with the OV’s opinion, after hearing expert evidence. The respondent replied that there was no need to use this process as other methods were available to ensure the carcass did not enter the food supply chain.

The OV served on the appellant a notice requiring it to dispose of the carcass. The appellant, alongside the Association of Independent Meant Suppliers, brought judicial review proceedings to challenge respondent’s assertion that it was not required to use the section 9 procedure and, in the alternative, to claim that it was incumbent on the United Kingdom to provide a method of challenging the OV’s decisions. The judicial review claim failed at first instance and in the Court of Appeal.

In order to determine this appeal, the Court referred the following questions to the Court of Justice of the European Union:

Was the section 9 procedure compatible with the food safety regime laid down by EU law?
If EU law requires that there be an appeal procedure to challenge an OV’s decision, what should be the grounds of challenge?

On the first question, the CJEU answered this in the negative. EU law entrusted the OV with the responsibility for ensuring that meat was fit for human consumption as the person best qualified to carry out such checks. The section 9 procedure, however, would undermine this responsibility by allowing for the replacement of the OV by a JP ruling on the merits of the case. Although EU law required that a slaughterhouse such as the appellants should be able to challenge a decision of the OV, the section 9 procedure was not appropriate: it did not allow a party such as the appellant to bring a legal action of its own initiative (as it required the OV to present the carcass to a JP) and, further, did not authorise the JP to annul or lift the effects of the OV’s decision. National legislation of the kind in section 9 was therefore precluded by EU law.

On the second question, the CJEU considered that to determine the grounds of challenge which EU law required should be available in relation to a legal challenge to a decision taken by a national body pursuant to EU law, it was necessary to take into account the purpose of the decision and to ensure that its effectiveness was not undermined.

Applying this approach, the CJEU considered the relevant factors for determining the degree of rigour appropriate for a legal challenge to a decision of an OV. It had regard to number of factors, including the complex technical nature of the OV’s role and the requirement for the OV to provide a statement of reasons. Further, the OV’s responsibility under EU law did not require a member state to establish a procedure allowing for judicial review of all the OV’s assessments of the specific facts found in a given case. In this context, therefore, judicial review of an OV’s decision on conventional public law grounds, including applying the wrong test, irrationality or deciding without a sufficient evidential basis, provided a slaughterhouse like the appellants with appropriate effective judicial protection.

In light of the CJEU’s answers, the Supreme Court decides that the section 9 procedure is not compatible with the requirements of EU law, whereas judicial review of a decision of an OV such as that in the present case is compatible. There was therefore no foundation for appellant’s contention that the respondent was required to use the section 9 procedure, nor any basis for the alternative complaint that the United Kingdom has failed to provide an appropriate means to challenge decisions taken by an OV.

 

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

05 Mar 2019       Morning session               Afternoon session

This Week In the Supreme Court – w/c 6th December 2021

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

On Tuesday 7th and Wednesday 8th December the court will hear the case of Fearn and others v Board of Trustees of the Tate Gallery. This appeal concerns whether the Court of Appeal erred in failing to hold that: (i) private nuisance, understood in light of the requirements of section 6(1) of the HRA, is capable of providing a remedy against ‘viewing’ from neighbouring land; (ii) public viewing from the Respondent’s viewing gallery into the Appellant’s flats infringes the Appellants’ rights under article 8(1) of the European Convention on Human Rights (ECHR) to respect for their private lives and their homes. The judgment being appealed is [2020] EWCA Civ 104.

On Wednesday 8th December, the Court will hand down judgment in R (on the application of Association of Independent Meat Suppliers and another) v Food Standards Agency. The issue in this case is whether there is a right of appeal against an Official Veterinarian’s assessment of the fitness of meat for human consumption where there is a dispute as to the fitness of the meat. The judgment being appealed is [2017] EWCA Civ 431.

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
Fearn and others v Board of Trustees of the Tate Gallery heard 7th to 8th December 2021

Case Preview: FirstPort Property Services Ltd v Settlers Court RTM Company and others

In this post, Jen Knibbs an associate with CMS, previews the decision awaited in the case of FirstPort Property Services Ltd v Settlers Court RTM Company and others.

On 10 and 11 November 2021, the Supreme Court heard FirstPort Property Services Ltd’s (“FirstPort”) eagerly anticipated appeal from the ruling of the Upper Tribunal (Lands Chamber), in a case which concerns the extent of a right to manage company’s powers.

The Right to Manage (“RTM”) was introduced by the Commonhold and Leasehold Reform Act 2002 (the “Act”). The Act gives leaseholders the statutory right, if they meet certain qualifying criteria, to take over the landlord’s management functions under the lease of their building. The leaseholders do not need to demonstrate that there has been any mismanagement of their building, they simply have to follow the procedure as set out in Chapter 1 of the Act in order to acquire the management functions and resulting entitlement to fees.

The case raises an important question – does an RTM company only acquire the right to manage the building itself, or do those rights extend to the wider estate, or “appurtenant property”, where the relevant building forms part of a larger development.

Background

FirstPort is the named management company in the leases of certain flats at the Virginia Quay Estate (the “Estate”) in London. The Estate comprises many properties, including several freehold houses and nine other blocks of flats, as well as certain common property such as gardens and accessways. Settlers Court RTM Company Limited (the “RTM Company”) acquired the right to manage Settlers Court, one of the blocks forming part of the Estate.

After successfully acquiring their statutory right to manage Settlers Court, the RTM Company took over FirstPort’s responsibility for providing services at Settlers Court. FirstPort continued to provide services to the whole Estate, including Settlers Court, as per its responsibilities in terms of the lease, and continued to collect fees for the services rendered.

An issue then arose when a number of lessees refused to pay their portion of the fees charged by FirstPort notwithstanding the fact that they had had the benefit of the services. The lessees argued that they were no longer obliged to pay FirstPort, as the right to collect fees had passed to the RTM Company. Under s 97(2) of the Act, a landlord or management company cannot carry out the management functions that have been acquired by the RTM Company unless otherwise agreed.

First instance decision

The RTM Company applied to the First-Tier Tribunal for a determination as to whom the service fees relating to the management of the Estate appurtenant property were payable.

The Tribunal held that service charges were payable to the RTM Company and not to FirstPort, finding that the right to provide all management functions and services at Settlers Court, including its appurtenant property, passed to the RTM Company when the right to manage was acquired. Reliance was placed on the Court of Appeal decision in Gala Unity Ltd v Ariadne Road RTM Company Ltd [2012] EWCA Civ 1372 (“Gala Unity”), where it was found that the right to manage extended to “non-exclusive” parts of a wider estate, e.g. car parks, gardens etc.

“Appurtenant property”, defined at s 112 (1) of the Act, means property “in relation to a building or part of a building or a flat, means any garage, outhouse, garden, yard or appurtenances belonging to, or usually enjoyed with, the building or part or flat”, or, in other words, the property surrounding the building.

The Upper Tribunal

FirstPort appealed to the Upper Tribunal on the basis that Gala Unity had been wrongly decided. The Upper Tribunal found that whilst the outcome in Gala Unity created many difficulties in wider estate management, the decision was not made in error, nor was the Court’s reasoning leading to the final decision demonstrably wrong.

The Upper Tribunal did however issue a “leapfrog” certificate which enabled FirstPort to apply for permission to appeal directly to the Supreme Court and bypass the Court of Appeal.

Significance

There are many practical difficulties that the decision in Gala Unity has created for those involved in estate management. If landlords and RTM companies cannot come to an agreement as to how the estate should be managed, both will continue to have potentially overlapping obligations leading to the risk of duplication, or indeed a lack of management, resulting in issues for landlords, tenants, and RTM companies alike.

Judge Siobhan McGrath sitting in the Upper Tribunal acknowledged that;

“…the difficulties described result from the legislation itself. The challenges of creating a regime which gives lessees the right to manage the block of flats in which they live but which also seeks to give them rights of management in respect of the estate where the block of flats is located should not be underestimated.”

The Supreme Court will have to consider the intended purpose of the RTM regime and whether Gala Unity was correctly decided. The outcome will have significant consequences for all those who have an interest in multi-block estates.

It is worth noting that the Law Commission has already considered the difficulties with the RTM scheme and has set out several proposals for reform in their July 2020 report. One proposal is to reverse the decision in Gala Unity and to ensure that an RTM company does not automatically acquire management functions relating to non-exclusive estate property. It will be interesting to see the extent to which the Supreme Court is sympathetic to the Law Commission’s proposals.

 

New Judgment: Fratila and another (AP) v Secretary of State for Work and Pensions [2021] UKSC 53

On appeal from [2020] EWCA Civ 1741

The Respondents are Romanian nationals residing in the UK. They both made applications for universal credit in June 2019. At the time of their applications, the Respondents’ right to reside in the UK arose solely from their pre-settled status under the EU Settlement Scheme. The Respondents’ applications were refused because the Universal Credit Regulations 2013, as amended by the Social Security (Income Related Benefits) (Updating and Amendment) (EU exit) Regulations 2019 (the “2019 Regulations”) do not permit universal credit to be granted solely on the basis of an individual’s pre–settled status.

The Respondents challenged the refusals of their applications for universal credit by way of judicial review. They argued that the 2019 Regulations should be quashed as contrary to the prohibition on discrimination on the grounds of nationality in Article 18 of the Treaty on the Functioning of the European Union (“article 18 TFEU”). In the High Court, Swift J dismissed the Respondents’ claim. However, the Court of Appeal (McCombe and Moylan LJJ, Dingemans LJ dissenting) allowed the Respondents’ appeal. The Appellant then appealed to the Supreme Court.

 

HELD – The Supreme Court unanimously allows the appeal. The Respondents’ challenge to the 2019 Regulations therefore fails. Lord Lloyd-Jones gives the Court’s judgment.

 

The Court of Justice of the European Union delivered its judgment in Case C-709/20 CG v The Department for Communities in Northern Ireland. The CJEU held that article 18 TFEU has no application to the Universal Credit Regulations (Northern Ireland) 2016, as amended by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations (Northern Ireland) 2019 (which are materially similar to the Universal Credit Regulations 2013, as amended by the 2019 Regulations). The CJEU’s judgment is binding because this case concerns the application of EU law during the transition period following the UK’s withdrawal from the EU. In accordance with the CJEU’s judgment in CG, the Respondents are therefore not entitled to rely on article 18 TFEU.

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 judgment summary, please seen below:

Watch Judgment summary

1 Dec 2021
Judgment summary

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