Month: November 2022

On Wednesday 30th November and Thursday 1st December, the Court will hear the conjoined appeals In the matter of an application by James Hugh Allister and others for Judicial Review  (Northern Ireland), In the matter of an application by Clifford Peoples for Judicial Review (Northern Ireland). In these conjoined appeals, the appellants challenge the lawfulness and constitutionality of the respondents’ decisions and actions in the negotiation, implementation, and operation of the Northern Ireland Protocol. The issues raised concern the constitutional settlement of the UK, the operation and interpretation of the Belfast Agreement, and the effect of the Withdrawal Agreement between the UK and the EU and the Protocol in domestic law. The judgment on appeal is [2022] NICA 15.  

The following Supreme Court judgments remain outstanding: (As of 2/12/22)

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
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
Fearn and others v Board of Trustees of the Tate Gallery heard 7th December 2021
Stanford International Bank Ltd (in liquidation) v HSBC Bank PLC, heard 19th January 2022
Canada Square Operations Ltd v Potter, heard 14th June 2022
DB Symmetry Ltd and another v Swindon Borough Council, heard 12th July 2022.
Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill, heard 19th July 2022
R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department, heard 4th October 2022
McCue v Glasgow City Council, heard 18th October 2022
Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another, heard 20th October 2022
In the matter of an application by Rosaleen Dalton for Judicial Review (Northern Ireland), heard 26th October 2022.
Brake and another v Chedington Court Estate Ltd, heard 1st November 2022
Barton and others v Morris and another in place of Gwyn–Jones, heard 3rd November 2022.
Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retail Ltd, heard 8th November 2022
R (on the application of Pearce and another) v Parole Board of England and Wales, heard 9th November 2022
News Corp UK & Ireland Ltd v Commissioners for His Majesty’s Revenue and Customs, heard 22nd November 2022
R (on the application of Maguire) v His Majesty’s Senior Coroner for Blackpool & Fylde and another, heard 22nd November 2022.
In the matter of an application by James Hugh Allister and others for Judicial Review  (Northern Ireland), In the matter of an application by Clifford Peoples for Judicial Review (Northern Ireland), heard 30 November – 1 December

In this post, Sarah Collins, Senior Associate in the Real Estate team at CMS, previews the case of Aviva Investors Ground Rent GP Ltd and Anor v Williams and Ors, which is scheduled to be heard on 8 December 2022.

Factual Background

The respondents in this appeal (Aviva) own the freehold of a block of flats in Southsea (the “Block”). The appellants each own a flat in the Block on a long lease. By virtue of the leases, Aviva are required to maintain the structure and common parts of the Block, whilst the flat owners are required to contribute towards the cost of the same via the service charge mechanism.

Each lease sets out the proportion of the maintenance costs that the leaseholder should pay, which are expressed as a percentage or such other proportion “as the Landlord may otherwise reasonably determine”.

Section 27A(6) of the Landlord and Tenant Act 1985 (the “1985 Act”) provides:

“(6) An agreement by the tenant of a dwelling (other than a post-dispute arbitration agreement) is void in so far as it purports to provide for a determination—

(a) in a particular
(b) on particular evidence

of any question which may be the subject of an application under subsection (1) or (3).”

The matters at subsections (1) and (3) relate to the Tribunal’s jurisdiction to determine whether a service charge is payable and its amount.

In an earlier decision of the Upper Tribunal (Windermere Marina Village Ltd v Wild [2014] UKUT 163 (LC)), it was held that it is within the jurisdiction of the First-tier Tribunal (the “FTT”) to determine apportionments of expenditure under section 27A(1) of the 1985 Act, such that lease clauses purporting to allow a landlord or other party to determine the service charge proportion is void. This decision was subsequently approved by the Court of Appeal in Oliver v Sheffield City Council [2017] EWCA Civ 225.

Section 27A(4) of the 1985 Act prevents a party from applying to the appropriate Tribunal in circumstances where the subject matter has been agreed. Given a fixed percentage is written into the lease, it follows that the percentage has been agreed and accordingly the FTT has no jurisdiction to determine it. Aviva v Williams, however, deals with a hybrid clause such that it expresses a percentage (which would deprive the FTT of jurisdiction), but also allows for the landlord to determine a proportion (which only the FTT has jurisdiction to decide). Aviva have been demanding service charges in proportions which differ to the fixed proportions for several years.

The question before the Supreme Court is therefore the correct interpretation of the clause containing the proportion. Is the effect of section 27A(6) of the 1985 Act to remove the variable element (resulting in the fixed percentages being the only proportions that can be applied) or is it only the part relating to the landlord’s determination that becomes void (resulting in the FTT having jurisdiction to vary the proportions in place of Aviva)?

Appellate History

At first instance, the FTT held that it retained a jurisdiction to determine the proportions, whilst the Upper Tribunal determined that the provision for landlord determination was removed in its entirety such that the fixed percentages needed to be charged.

The Decision of the Court of Appeal

The Court of Appeal agreed with the FTT. Having considered Windermere and subsequent cases, it reiterated that section 27A(6) of the 1985 Act is concerned “with no more than removing the landlord’s role (or that of another third party) from the decision making process, in order not to deprive the FTT of jurisdiction under Section 27A(1)”. The statutory objective is satisfied if the landlord’s role is transferred to the FTT (as opposed to eliminating the clause completely). The Court of Appeal also expressed a view that there is no issue in principle in retaining a flexible approach to service charge proportions, providing the decision as to apportionments is taken by the FTT.

It making its decision, the Court of Appeal reiterated that the Upper Tribunal’s decision had the effect of depriving the FTT of all jurisdiction over the apportionment of service charges, which was not what section 27A(6) of the 1985 Act had intended to achieve.

Comment

When granted, most residential flat leases are for a term in excess of 99 years, some as long as 999 years. It is therefore feasible that during the term, circumstances may change where some or all parties would benefit from a reallocation of service charge proportions. With the popularity of rooftop development, for example, where additional flats are built on top of those which originally existed, it would seem fair in the circumstances that additional owners contribute to the service charges and thus reduce the existing owners contributions. If the Supreme Court allows the leaseholders’ appeal, the flexibility to reallocate contributions will be removed from similar leases. There are only limited circumstances where proportions could otherwise be varied outside of the lease terms (for example, if the percentages do not add up to 100% an application can be made under the Landlord and Tenant Act 1987), meaning change of circumstances cannot easily be accounted for.

A degree of flexibility is a useful tool in addressing any imbalance caused by a change of circumstances. Of course, however, there are circumstances where leaseholders may not agree with a reallocation and section 27A(6) of the 1985 Act and its subsequent interpretation in Windermere, contains useful protection for those leaseholders. Aviva v Williams will confirm whether a de facto ability to vary the service charge proportions can still be taken advantage of by landlords or leaseholders alike (subject to determination by the FTT), or whether the fixed percentages agreed, sometimes many years ago, are to be retained.

Whilst the leaseholders in this case are arguing in favour of a fixed percentage, there will of course be situations where leaseholders are in favour of a reallocation (for example, if it results in a reduction of their charges). Either way, clarification from the Supreme Court will be welcomed.

The Scottish Government drafted a Scottish Independence Referendum Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?”. Under the Scotland Act 1998 (“the Scotland Act”), the power of the Scottish Parliament to make legislation (or its “legislative competence”) is limited. A provision of a Bill will be outside the legislative competence of the Scottish Parliament and therefore not law if it relates to the matters which have been reserved to the United Kingdom Parliament in Westminster (sections 29(1) and (2)(b)). These reserved matters include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)).

In this reference, the Lord Advocate (the senior law officer of the Scottish Government) asks the Court whether the provision of the proposed Bill which provides for a referendum on Scottish independence would be outside the legislative competence of the Scottish Parliament because it relates to either or both of the reserved matters of the Union or the United Kingdom Parliament. This is a legal question about the Scottish Parliament’s power to make legislation under the Scotland Act. The Court is not being and could not be asked to give a view on the distinct political question of whether Scotland should become independent from the rest of the United Kingdom.

The powers of the Scottish Parliament were not in issue during the 2014 referendum on Scottish independence. This is because, in 2013, an Order in Council under section 30(2) of the Scotland Act modified the definition of reserved matters to enable the Scottish Parliament to pass the 2014 referendum legislation. The United Kingdom Government is currently unwilling to agree to the making of another Order in Council to facilitate another referendum on Scottish independence.

The Lord Advocate’s reference was made under paragraph 34 of Schedule 6 to the Scotland Act. The Advocate General for Scotland (the Scottish law officer of the United Kingdom Government) raises two preliminary issues, namely, whether the Court can and should answer the reference. There are consequently three questions which the Court must consider. First, is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6, which would mean that the Court does not have jurisdiction to decide it. Secondly, even if it is a devolution issue, should the Court exercise its discretion to decline to accept the reference? Thirdly, if the Court accepts the reference, how should it answer the question the Lord Advocate has referred to it?

HELD: The Supreme Court unanimously dismissed this appeal.

In a unanimous judgment, the Court answers the questions before it as follows. First, the question referred by the Advocate General is a devolution issue, which means that that the Court has jurisdiction to decide it. Secondly, the Court should accept the reference. Thirdly, the provision of the proposed Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?” does relate to matters which have been reserved to the Parliament of the United Kingdom under the Scotland Act. In particular, it relates to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom. Accordingly, in the absence of any modification of the definition of reserved matters (by an Order in Council or otherwise), the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.

Issue 1: Is the question referred by the Lord Advocate a devolution issue?

Only a “devolution issue” can be referred to the Court under paragraph 34 of Schedule 6 to the Scotland Act. The term “devolution issue” is defined by paragraph 1 of Schedule 6. Under paragraph 1(f), it includes “any other question arising by virtue of this Act about reserved matters”. The Court concludes that the question referred by the Lord Advocate falls within this description and is therefore a devolution issue which the Court has jurisdiction to decide.

In reaching this conclusion, the Court holds, first, that the question referred is one “arising by virtue of” the Scotland Act because it is a question which arises under section 31(1) for the person wishing to introduce the Bill into the Scottish Parliament. That person is required, on or before the Bill’s introduction, to give a statement confirming that, in their view, the provisions of the Bill would be within the legislative competence of the Scottish Parliament. Secondly, the existence of the separate scheme for the scrutiny of Bills for legislative competence by the Court in section 33 of the Scotland Act does not prevent a reference from being made under paragraph 34 of Schedule 6 in relation to a proposed Bill, before it is introduced. Thirdly, the terms of paragraph 1(f) of Schedule 6 are very wide. They are intended to sweep up any questions arising under the Scotland Act about reserved matters which are not covered elsewhere. Fourthly, it is consistent with the rule of law and with the intention of the Scotland Act that the Lord Advocate should be able to obtain an authoritative judicial decision on the legislative competence of the Scottish Parliament in advance of the introduction of a Bill.

Issue 2: Should the Court decline to accept the Lord Advocate’s reference?

The Court concludes that it should accept the reference. The reference has been made in order to obtain an authoritative ruling on a question of law which has already arisen as a matter of public importance. The Court’s answer will determine whether the proposed Bill is introduced into the Scottish Parliament. The reference is not therefore hypothetical, academic or premature [53].

Issue 3: Does the proposed Bill relate to reserved matters?

The question whether the provision of the proposed Bill which provides for a referendum on Scottish independence would relate to matters which have been reserved to the United Kingdom Parliament under the Scotland Act (section 29(2)(b)) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances (section 29(3).

A provision will relate to a reserved matter if it has something more than a loose or consequential connection with it. The purpose and effect of the provision may be derived from a consideration of both the purpose of those introducing the legislation and the objective effect of its terms. Its effect is not restricted to its legal consequences.

Applying this test, the reserved matters which are relevant here are “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)). The latter reservation includes the sovereignty of the United Kingdom Parliament. The purpose of the proposed Bill is to hold a lawful referendum on the question of whether Scotland should become an independent country, that is, on ending the Union and the sovereignty of the United Kingdom Parliament over Scotland. The Bill’s effect will not be confined to the holding of the referendum. Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences. It is therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish Parliament.

The Scottish National Party (intervening) made further written submissions founded on the right to self–determination in international law and the principle of legality in domestic law. The Court rejects these submissions, holding that the right to self–determination is not in issue here and does not require a narrow reading of “relates to” in section 29(2)(b) so as to limit the scope of the matters reserved to the United Kingdom Parliament under the Scotland Act. Similarly, the allocation of powers between the United Kingdom and Scotland under the Scotland Act does not infringe the principle of legality.

For the judgment, please see:

Judgment (PDF)

For the Press Summary, please see:

Press summary (HTML version)

Watch hearing

11 Oct 2022 Morning session Afternoon session

12 Oct 2022 Morning session Afternoon session

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

The Court will be hearing two cases this week, starting on Tuesday 22nd until Wednesday 23rd:

News Corp UK & Ireland Ltd v Commissioners for His Majesty’s Revenue and Customs – This case considers whether the Court of Appeal erred in finding that News UK’s supplies of digital issues of The Times, The Sunday Times and The Sun were not supplies of “newspapers” within the meaning of the Value Added Tax Act 1994 (VATA) such that they could not be zero–rated for VAT. On appeal from [2021] EWCA Civ 91.

R (on the application of Maguire) v His Majesty’s Senior Coroner for Blackpool & Fylde and another – Whether the death of a disabled woman who was deprived of her liberty engaged the state’s obligation to protect life under Article 2 of the European Convention on Human Rights, therefore requiring an inquest jury to make findings regarding the circumstances by which the death occurred. On appeal from [2020] EWCA Civ 738.

On Wednesday 23rd November, the Court will hand down judgment in the Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31. The Court was asked to consider a number of issues relating to the proposed Scotland Independence Reference Bill, starting with whether it had the jurisdiction to decide the reference at all.

The following Supreme Court judgments remain outstanding: (As of 23/11/22)

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
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
Fearn and others v Board of Trustees of the Tate Gallery heard 7th December 2021
Stanford International Bank Ltd (in liquidation) v HSBC Bank PLC, heard 19th January 2022
Canada Square Operations Ltd v Potter, heard 14th June 2022
DB Symmetry Ltd and another v Swindon Borough Council, heard 12th July 2022.
Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill, heard 19th July 2022
R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department, heard 4th October 2022
McCue v Glasgow City Council, heard 18th October 2022
Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another, heard 20th October 2022
In the matter of an application by Rosaleen Dalton for Judicial Review (Northern Ireland), heard 26th October 2022.
Brake and another v Chedington Court Estate Ltd, heard 1st November 2022
Barton and others v Morris and another in place of Gwyn–Jones, heard 3rd November 2022.
Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retail Ltd, heard 8th November 2022
R (on the application of Pearce and another) v Parole Board of England and Wales, heard 9th November 2022
News Corp UK & Ireland Ltd v Commissioners for His Majesty’s Revenue and Customs, heard 22nd November 2022
R (on the application of Maguire) v His Majesty’s Senior Coroner for Blackpool & Fylde and another, heard 22nd November 2022.

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

On Tuesday 8th November the Court will hear the case Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retail Ltd, on appeal from [2020] EWCA Civ 1521. The hearing will be at 10:30 in Courtroom Two and will consider whether the Court of Appeal erred in its construction of a provision in a commercial lease concerning service charges.

On Wednesday 9th November the Court will hear R (on the application of Pearce and another) v Parole Board of England and Wales, on appeal from [2020] EWHC 798. The hearing will be at 10:30 in Courtroom 2. The Court will consider two issues: (1) When the Parole Board assesses the risk to the public arising from the potential release of a prisoner, can it only take into account allegations if they are proved on the balance of probabilities? (2) Does the Parole Board’s “Guidance on Allegations” (the Guidance) misstate the law on this issue?

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

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
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
Fearn and others v Board of Trustees of the Tate Gallery heard 7th December 2021
Stanford International Bank Ltd (in liquidation) v HSBC Bank PLC, heard 19th January 2022
Canada Square Operations Ltd v Potter, heard 14th June 2022
DB Symmetry Ltd and another v Swindon Borough Council, heard 12th July 2022.
Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill, heard 19th July 2022
R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department, heard 4th October 2022
McCue v Glasgow City Council, heard 18th October 2022
Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another, heard 20th October 2022
In the matter of an application by Rosaleen Dalton for Judicial Review (Northern Ireland), heard 26th October 2022.
Brake and another v Chedington Court Estate Ltd, heard 1st November 2022
Barton and others v Morris and another in place of Gwyn–Jones, heard 3rd November 2022.
Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retail Ltd, heard 8th November 2022
R (on the application of Pearce and another) v Parole Board of England and Wales, heard 9th November 2022

In this post, Mark Summers KC and James Stansfeld of Matrix Chambers comment on the Supreme Court’s decision in Public Prosecutors Office of the Athens Court of Appeal v O’Connor (Northern Ireland) [2022] UKSC 4.

The problems associated with appellate time limits under the Extradition Act are long-standing and notorious. As part of the then Government’s drive to rid the system of delays that had previously characterised extradition, the 2003 Act introduced rigid, and peremptory, time periods in which appeals were required to be lodged.

The problems with such a system were obvious and immediately felt. Unrepresented defendants in custody, often without access to even a fax machine, were the prime, but by no means only, group of persons dealt serious and predictable injustice by this inflexible regime.

What immediately followed was, ironically, an equally predictable stream of additional High Court litigation testing the limits of the statutory regime; what constituted a valid ‘notice’ of appeal (would a mere letter do?); what ‘grounds’ did the notice require (would a letter which contained none do?); what did ‘giving’ notice mean (did it include service, and if so on which of the many extradition actors?); did the CPR service deeming provisions apply (could notice be given outside of court hours?); could an irregular notice be cured (what if only the front page of a notice had been faxed by the prison?). Etc, etc. The Court’s answers to most of these questions were invariably coloured heavily by a desire to alleviate the injustices caused by an unnecessarily harsh statutory scheme. Liberty is, after all, at stake. But difficult facts and a desire to bend normal principles to accommodate them, make for, at best, inconsistent and superficial decisions.

Matters came to a head in the Supreme Court in 2012 in Pomiechowski v Poland [2012] 1 WLR 1604, when this Court decried the unfairness of the system and strove to find a more sustainable way around it. For some of the appellants in that case, an expansive and ‘generous’ interpretation of an appeal ‘notice’ was alone sufficient to remove injustice. For one, however, not even that device could work (at least not without reversing prior Supreme Court authority holding that ‘giving’ notice means serving as well as lodging: Mucelli v Albania [2009] 1 WLR 276 ). The solution devised in Pomiechowski? To venture article 6 ECHR and the right of access to justice into pastures it was never intended to reach. ECtHR case law had consistently refused to apply article 6 to the substantive conduct of extradition proceedings. This Court however, imaginatively reasoned that, because UK citizens possessed a common law right to enter and remain within the UK and the extradition proceedings under the 2003 Act could affect that right, such extradition proceedings fell within article 6 because such a defendant was entitled to a fair determination of his common law right to remain within the jurisdiction. Reasoning generally then that the absolute and inflexible time limits for appeal in the 2003 Act did not meet the required article 6 standard of access to justice, the HRA served therefore, in the case of a UK citizen at least, to require the statutory provisions to be read as being subject to judicial discretion to extend time.

The limits to what this Court could achieve this way were plain. The new implied discretion could not apply to non-UK citizens, nor foreign states. For the former at least, the system remained ‘discriminatory’ and ‘unsatisfactory’.

Parliament eventually answered this Court’s call to act. The Anti-social Behaviour, Crime and Policing Act 2014 did so by inserting into the various defence appellate provisions of the 2003 Act (ss.26(5), 103(10), 108(7A)) a discretion to extend time ‘if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given’.

This was and is no general discretion to extend time where it is in the interests of justice to do so, nor is it one which enables consideration of the underlying merits of a putative appeal. The sole focus of the power is instead on the conduct of ‘the person’. But the power nonetheless worked reasonably well to remove the injustices caused by the system and matters quietened down. At least they did until Szegfu v Hungary [2016] 1 WLR 322; in which the High Court afforded a broad interpretation to the meaning of ‘the person’ and applied to the Act the ‘surrogacy’ principle, by which the faults of lawyers are attributed to the party personally. In this context, that meant that a defendant (in custody etc.) who had done all s/he could do to initiate an appeal (by instructing lawyers etc.) was shut out (and surrendered abroad) because their instructed lawyer had failed to act with appropriate diligence. Szegfu undoubtedly marked a sharp change of judicial direction. Previously striving to bend an unfair system towards fairness, the High Court apparently now regarded the system as sufficiently fair, and indulgence to defendants no longer needed.  According to the High Court, the sole mischief to which the new discretion was aimed was unrepresented defendants in custody; judicial latitude in its interpretation was no longer required for defendants (such as Mr Szegfu) who were represented.

The High Court in Northern Ireland promptly disagreed (O’Connor v Greece [2017] NIQB 77) and the matter came before the Supreme Court.

On 2 February 2022, the Supreme Court gave judgment in Public Prosecutors Office of the Athens Court of Appeal v O’Connor (Northern Ireland) [2022] UKSC 4; [2022] 1 WLR 903. The Court unanimously held that Szegfu was wrong.

The decision is neither controversial nor surprising. The mischief to which the new discretion was aimed was assuredly not confined to unrepresented defendants in custody. Rather, some of the key injustices which had led to the introduction of the discretion had involved failures by lawyers (see, e.g. R (Mann) v Westminster Magistrates’ Court [2010] EWHC 48 (Admin)). Attributing their faults to their clients was neither intended by the scheme introduced by the 2014 amendments, nor remotely warranted in principle. Especially where liberty of the individual is at stake. Recall, for example, that Mr O’Connor himself was (once his appeal was admitted) discharged on Article 3 ECHR grounds as a result of the treatment that awaited him in the notorious Greek prison system.

Context is everything. It was never likely that, given the pivotal role it had played in its creation, the Supreme Court was realistically going to accept neutering of its hard-won judicial discretion in this way. The ‘surrogacy’ principle is not, after all, of universal application. It was doubly unlikely to do so in an appeal carrying a proven Article 3 violation. In fact, the Supreme Court had only given Greece permission to appeal at all on condition that it undertook not to arrest Mr O’Connor in the UK even if it won the appeal.

One is left wondering why the Szegfu neutering attempt ever happened in the first place? No doubt the lack of underlying merit in Mr Szegfu’s appeal did not incline the High Court to entertain his out-of-time appeal. Facts undoubtedly drive decisions. But it bears observing that the whole discussion in Szegfu was arid (obiter) in any event; the faults in late service were Mr Szegfu’s own, not his lawyers. It required no ‘surrogacy’ principle to exclude his attempt to appeal.

On appeal from: [2020] EWCA Civ 1440

In 1967, planning permission was granted (the 1967 Permission) for a large housing estate of 401 dwellings in Snowdonia National Park (the Site). The approved plan (the Master Plan) identified the proposed location of each house and the road system for the estate. The appellant is the current owner and developer of the Site, having acquired it in 1988. Since the 1967 Permission was granted, only 41 houses have been built on the Site, none in accordance with the Master Plan.

High Court proceedings were first brought in 1985. At this time, nineteen dwellings had been built, none of which conformed to the Master Plan but which were constructed in accordance with a series of additional individual planning permissions. Following a trial in 1987, Drake J granted a number of declarations, including one that development under the 1967 Permission could still be lawfully completed in accordance with the Master Plan “at any time in the future” (the 1987 Declaration).

Following the 1987 Declaration, further planning permissions (the Post-1987 Permissions) were granted by the local planning authority (the Authority) in relation to particular parts of the Site. Development was undertaken pursuant to the Post-1987 Permissions which, as before, departed from the Master Plan. In addition, it has emerged that after about 2004 houses were built on an area of the Site without any planning permission, in a manner that is inconsistent with the Master Plan.

In 2017, the Authority informed the appellant that it could not now implement the 1967 Permission given that it was not physically possible to build the development in a manner consistent with the Master Plan. The appellant brought proceedings seeking declarations that the 1967 Permission remained valid and could be carried out to completion as set out in the 1987 Declaration.

Held: The Supreme Court unanimously dismissed this appeal.

The leading case on the effect of successive and mutually inconsistent planning permissions granted for development on the same site is Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527. Two inconsistent permissions can be granted for development of land and a developer can choose which to implement. In Pilkington it was decided that, where development has taken place under one permission, whether another planning permission may lawfully be implemented depends upon whether it remains physically possible to carry out the development authorised by the second permission in light of what has already been done under the first permission.

The High Court had decided that, in 1987, it remained possible to implement the 1967 Permission despite the development which had by then taken place. But that left open the effect of the development which has subsequently taken place. The courts below held that, under the Pilkington test, development carried out under the Post-1987 Permissions has rendered the 1967 Permission incapable of further implementation. Hillside raised three arguments to the contrary. None of them can be sustained.

(i) Abandonment

The appellant contended that Pilkington should be analysed as resting on a principle of abandonment whereby the right to develop land under a planning permission will be lost if a landowner acts in a way which would lead a reasonable person to conclude that the right has been abandoned. Much of the Site remains unaffected by the building that has occurred on it and it would therefore still be physically possible to develop significant parts of it in accordance with the Master Plan. As such, the appellant submitted that no reasonable person would conclude that, in implementing the Post–1987 Permissions, the landowner had abandoned plans for development under the 1967 Permission on the vacant parts of the Site.

The Court rejected this submission. The principle in Pilkington does not rest on a principle of abandonment. Moreover, in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 the House of Lords held that there is no room for any principle of abandonment in planning law.

(ii) Multi-unit developments

The appellant submitted that where planning permission is granted for the development of a site comprising multiple units, the permission should be interpreted as authorising a number of discrete acts of development (e.g. of each dwelling) and not as a permission for a single integrated scheme which cannot be broken up into discrete elements. The implementation of the Master Plan on the undeveloped part of the Site should not therefore depend on whether it is still physically possible to develop all parts of the Site in accordance with the 1967 Permission.

The Court rejected this submission. Planning permission for a multi-unit development is granted for that development as an integrated whole. The development on part of the Site under the Post-1987 Permissions, which departed from the 1967 Permission and was inconsistent with the Master Plan, has made it physically impossible and so unlawful to carry out any further development under the 1967 Permission.

(iii) Variation

The appellant submitted that the Post-1987 Permissions were not intended to be independent of the 1967 Permission but merely authorised variations of parts of the Master Plan. The 1967 Permission, as varied, therefore remains valid and capable of further implementation.

The Court rejected this submission: (i) It was not sufficient that some of the Post-1987 Permissions were expressed to be “variations” of the original 1967 Permission. The analysis of a planning permission is one of substance, not form; (ii) it was irrelevant that certain of the Post-1987 Permissions referred to development in only discrete parts (or “plots”) of the Master Plan. In substance the Post-1987 Permissions were departures from, not variations of, the 1967 Permission. The development carried out under these permissions made it impossible for Hillside to carry out development in accordance with the 1967 Permission, as did the buildings erected without permission; (iii) the interpretation of a planning permission depends on how a reasonable person would interpret the permission, and the Post-1987 Permissions could not be interpreted as local variations of the Master Plan; rather they were independent permissions each applicable only to a specific part of the Site.

For the judgment, please see:

Judgment (PDF)
Judgment on The National Archives (HTML version)
Judgment on BAILII (HTML version)

For the Press Summary, please see:

Press summary (HTML version)

Watch hearing

4 July Morning session Afternoon session

Judgment appealed: [2020] EWCA Civ 926

This case considers a claim for contribution brought against Allgemeines Krankenhaus Viersen GmbH (“AKV”) who, as a third party pursuant to the Civil Liability (Contribution) Act 1978 (“the 1978 Act”), the defendants claim is liable in respect of the same damage as they are.

The parties agree that the claimant’s claim against the defendants (The Soldiers, Sailors, Airmen and Families Association and the Ministry of Defence (who agreed to indemnify the SSAFA)) is governed by German law, that any liability of the third party to the claimant is also governed by German law and that, applying domestic choice of law rules, German law would apply to the contribution claim unless the 1978 Act has overriding effect. If the contribution claim is governed by German law it is time barred. However, the defendants maintain that the 1978 Act has overriding effect with the result that limitation is governed by the law of England and Wales and the contribution claim is not time barred.

At first instance, it was held that the 1978 Act has overriding effect and applies irrespective of domestic choice of law rules. The Court of Appeal agreed, dismissing AKV’s appeal. AKV now appeals to the Supreme Court.

HELD – The Supreme Court unanimously allowed the appeal.

The issue before the court is whether the 1978 Act has overriding effect so that it applies to all contribution claims brought in England and Wales, or whether it applies only when domestic choice of law rules indicate that the contribution claim in question is governed by the law of England and Wales.

The 1978 Act does not provide expressly that it has overriding effect. It does not provide that the 1978 Act applies irrespective of the foreign law otherwise applicable to the contribution claim. The question is whether such an intention must be implied from the provisions of the statute. Three statutory provisions were identified variously by the Court of Appeal as supporting overriding effect: sections 1(6), 2(3)(c) and 7(3). The Supreme Court, however, considers these provisions equivocal. Their efficacy is not dependent upon overriding effect. In particular, even in the absence of overriding effect, section 1(6) will be effective in many situations such as where the parties to the contribution claim are in a special relationship governed by the law of England and Wales.

Nothing in the admissible Parliamentary materials or the legislative history supports the view that the legislation was intended to have overriding effect. However, the Bill was a Law Commission Bill and statements by the Commission in other reports suggest it was not intended to have overriding effect. The weight of academic commentary strongly favours the view that the 1978 Act does not have overriding effect.

The court considered Parliamentary materials and the legislative history of the Act, as well as statements made by the Law Commission and authorities. It was held that the weight of academic commentary strongly favoured the view that the 1978 Act does not have overriding effect.

The Supreme Court was influenced in particular by two considerations. First, there will be many situations in which a contribution claim will be governed by the law of England and Wales, notwithstanding the fact that the underlying liabilities are governed by a foreign law. Secondly, it is difficult to see why Parliament should have intended to confer a statutory right of contribution whenever the party from whom contribution is sought can be brought before a court in this jurisdiction, regardless of the law with which the contribution claim has its closest connection. A failure of foreign law to provide for contribution claims is not a defect requiring remedy by legislation in this jurisdiction. Moreover, it would seem contrary to principle for the law of England and Wales to be applied if the contribution claim were most closely connected to a foreign system of law.

For the Judgment, please see:

Judgment (PDF)
Judgment on The National Archives (HTML version)
Judgment on BAILII (HTML version)

For the Press Summary, please see:

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Watch hearing

29 March 2022
Morning session
Afternoon session