Month: August 2023

<![CDATA[Blockchain litigation lead, Matt Green will be hosting our latest podcast series, ‘In Early – The Crypto Podcast’ – Listen to episode 18.

This week Matt speaks to the man claiming two names – Dr Craig Wright and Satoshi Nakamoto. Following episode 8 of this podcast with Nick Smart of Crystal Blockchain Analytics, where we discussed the Bitcoin blockchain in the context of what the claimant is seeking in the case of Tulip Trading, Dr Wright’s team reached out to me to organise a recording to give his own views.

Following a two hour session, the podcast has been divided into two separate episodes. This week’s is about the man himself, his views on the history of digital money, what he says he did as Satoshi Nakamoto, including the reasons he says a pseudonym was made and where that name came from, who else, in his view helped create Bitcoin, and some of the clues left, considering, amongst other things C++ programming and the use of operating systems, why Bitcoin was released when it was, as well as the differences between Dr Craig Wright the man, and Satoshi Nakamoto the character, and why it was necessary, in his view to split the two.

The second episode is about the mechanics of Bitcoin, the differences between BSV, BTC and BCH, about decentralisation and what that means to him, crypto assets as property reviewing the Law Commission’s views, as well as Professor Robert Stevens’s paper “Crypto is not property”. We will also look at anonymity vs privacy, how if he won in Tulip trading he can enforce a judgment given global nature of the issue, his outfit NChain and its vision, and so much more.

These episodes are designed to give you the listeners threads to pull on and potentially further material as we study Bitcoin and its development. 

Listen to the podcast below and send your thoughts to matt.green@shoosmiths.co.uk.

 

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In this post, Romina Rivero and Elizabeth Lombardo of CMS preview the decision awaited from the Supreme Court in Canada Square Operations Ltd v Potter [2021] EWCA Civ 339. The appeal was heard by the Supreme Court on 14 and 15 June 2022, but the judgment has not yet been handed down.

 

Background

This case concerns the meaning of the words deliberate concealment for the purposes of s 32 of the Limitation Act 1980 (“LA 1980”).

S 32(1)(b) LA 1980 postpones the start of the limitation period until the claimant has discovered, or could with reasonable diligence have discovered, the deliberate concealment of a fact relevant to their right of action.  Clearly, if deliberate concealment is established by the claimant, their claim could be viable for a lot longer than the usual (primary) limitation period.

In the upcoming decision the Supreme Court will explain the extent of knowledge required for any concealment to be regarded as deliberate – in particular, whether recklessness is enough. It will also consider whether concealment only applies if the defendant breached a legal duty to disclose.

 

Facts of the case

In 2006, Mrs Beverley Potter entered into a regulated loan agreement with Egg Banking plc (which later changed its name to Canada Square Operations Ltd, “Canada Square”). At the same time, Mrs Potter also took out insurance under a payment protection insurance policy (the “PPI Policy”) with an insurer in the AXA group . Canada Square undertook two roles in its relationship with Mrs Potter: first, it was the lender of the money to Mrs Potter and, secondly, it was the insurance intermediary between Mrs Potter and AXA.

Mrs Potter was not told that 95.24% of the policy premium for the PPI Policy was paid to Canada Square as its commission on the sale of the PPI Policy. Mrs Potter complained to Canada Square and she was compensated. However, Mrs Potter did not consider this fully compensated her and subsequently, on 14 December 2018, issued proceedings against Canada Square to recover the balance of the sums she had paid under the PPI Policy.

The claim was brought under s 140A-D of the Consumer Credit Act 1974 (“CCA 1974”) and alleged that the relationship between the parties was rendered unfair by the fact that Canada Square had not disclosed to Mrs Potter the existence or amount of the commissions it had retained.

Canada Square accepted that it had not disclosed the commission but averred that the claim was time-barred under s 9 LA 1980, as it was issued more than six years after the loan agreement terminated.

In turn, Mrs Potter sought to rely on s 32 LA 1980, arguing that as a result of deliberate concealment by Canada Square the limitation period did not start to run until she first found out about the commission in November 2018.

Previous decision

At first instance, Mr Recorder Rosen QC found that Canada Square’s non-disclosure of the commission was deliberate so s 32 LA 1980 did apply and therefore, the limitation period had not started to run until November 2018.

S 32 LA 1980 includes:

S 32(1)(b) LA 1980, which provides that, where any fact relevant to the claimant’s right of action has been deliberately concealed by the defendant, limitation does not begin to run until the claimant has discovered the concealment or could with reasonable diligence have discovered it.
S 32(2) LA 1980, which provides that for the purposes of s 32(1)(b), deliberate commission of a breach of duty in circumstances where it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

Mrs Potter pleaded reliance on both limbs of s 32 LA 1980.

The Recorder accepted Mrs Potter’s evidence that Canada Square had never mentioned commission at the time the PPI Policy was sold to her and that Mrs Potter only became aware that Canada Square were likely to have received or retained excessive commissions when she received advice from her solicitors in November 2018.

The Recorder also held that such non-disclosure “was intentional or at least reckless” and involved a breach of duty on the part of Canada Square.

Indeed, the Recorder held that, from when Mrs Potter entered into the loan agreement, Canada Square: “must have and did know that it was acting unfairly” and that:

“it was reasonable to expect disclosure of the existence and extent of the commissions in the interests of fairness and that the Claimant was unlikely to discover the payment of excessive commissions unless informed of it by the Defendant and/or on enquiry through lawyers.”

Canada Square appealed, unsuccessfully, to the High Court and then to the Court of Appeal.

High Court

The claim came before Mr Justice Jay in the High Court, who dismissed Canada Square’s appeal, holding that s 32 LA 1980 did apply so as to extend the limitation period.

Mr Justice Jay found that Mrs Potter could not rely on s 32(1)(b) LA 1980 by itself because (a) the non-disclosure was not an active concealment but rather a case of omission to disclose; and (b) there was no legal duty to disclose the commissions.

The appeal, therefore, turned on “the true construction of s 32(2) and, in particular, the meaning of the term ‘breach of duty’”.

Following the case of Giles v Rhind (No 2) [2008] EWCA Civ 118 (“Giles v Rhind”), Mr Justice Jay found that s 32(2) LA 1980 should be interpreted more widely, so as to cover “legal wrongdoing of any kind, giving rise to a right of action”. On that interpretation, Mr Justice Jay found that Canada Square’s continued non-disclosure of the excessive commission it received constituted a breach of duty so that Mrs Potter could rely on s 32(2) LA 1980.

Mr Justice Jay agreed with the Lower Court that Canada Square’s breach of duty was deliberate for the period between ss 140A-C CCA 1974 coming into force on 6 April 2007 and the end of the loan in March 2010. Mr Justice Jay held that, during this period, Canada Square’s deliberate decision not to do something

“in circumstances where it was obvious that the existence of the commission would not be discovered for some time” meant that there was “some degree of blameworthiness” and “unconscionable conduct”.

Having analysed the authorities as to the nature of the mental element required, Mr Justice Jay concluded that conduct which is reckless is sufficient, “as is conduct where the actor knows that what he is doing may well be a wrong but takes the risk of it being so”.

Court of Appeal

Four grounds were raised by Canada Square to argue that Mr Justice Jay was wrong to hold that s 32(2) LA 1980 could be relied on by Mrs Potter.

Ground 1 – Did the creation of an unfair relationship amount to a breach of duty under s 32(2) Limitation Act 1980?

Following the decision of Arden LJ in Giles v Rhind, the Court of Appeal determined that ‘breach of duty’ is applicable to any legal wrongdoing. It is not, therefore, restricted to a breach of duty in a tortuous or contractual sense or in the sense of breach of an equitable or fiduciary duty.

The Court of Appeal, therefore, agreed with the High Court’s decision that the creation of an unfair relationship under s 140A CCA 1974 was a breach of duty for the purposes of s 32(2) LA 1980, despite there being no duty or obligation to disclose the commission under general law or under the CCA 1974.

Ground 2 – Was Canada Square’s failure to disclose the existence and size of the commission a ‘concealment’?

The parties agreed that there was no active concealment by Canada Square.

The Court of Appeal therefore considered the following questions:

if there is no active concealment, can s 32(1)(b) LA 1980 apply on the basis that the defendant has failed to disclose a fact relevant to the right of action;
if so, is that limited to a case where the defendant was under a free-standing legal duty to disclose that fact; and

was Canada Square subject to a duty to disclose the existence and scale of the commission, sufficient for its failure to disclose to amount to concealment?

The Court of Appeal did not accept that only active steps of concealment would satisfy s 32(1)(b) LA 1980.  The Court of Appeal commented that “the statutory provision of section 32(1)(b) does not refer to a duty to disclose, it refers only to concealment”, however “the concept of ‘concealing’ something” inherently pointed to “the existence of some obligation to disclose”. The Court of Appeal went on to find that the duty to disclose does not have to be a free-standing contractual, tortious, or fiduciary duty. For the purposes of LA 1980, that obligation need only arise from “a combination of utility and morality” – the Court is not required to undertake a detailed analysis of the implied contractual terms or the scope of the tortious duties of care when considering whether s 32(1)(b) LA 1980 is satisfied.

The Court of Appeal noted that “section 32(2) was intended to extend the scope of section 32(1)(b) to provide an alternative and in some cases easier means of establishing the facts necessary to bring the case within section 32(1)(b)”.  When considering question (iii), the Court of Appeal disagreed with Jay J’s earlier decision that Mrs Potter could not rely on s 32(1)(b) and instead found that:

“the obligations to act fairly imposed on Canada Square by section 140A were sufficient to mean that their failure to disclose the commission amounted to a concealment of that commission within the meaning of section 32(1)(b)”.

Grounds 3 and 4 – Was Canada Square’s concealment ‘deliberate’?

In order to establish that the concealment was ‘deliberate’, Mrs Potter had to show that Canada Square had “the necessary mental element in respect of the fact that their conduct gave rise to a breach of duty” for the purposes of s 32(2) LA 1980 and realised “that they should have told [Mrs Potter] about the commission and decided not to tell her” for the purposes of s 32(1)(b) LA 1980.

There are four potential tests to establish the mental element needed for the concealment to be ‘deliberate’: (i) actual awareness of wrongdoing; (ii) subjective knowledge including wilful blindness; (iii) recklessness with both a subjective and objective element; and (iv) recklessness with a subjective element only.

The Court of Appeal held that recklessness with both a subjective and objective element would be sufficient to establish that concealment was deliberate.

This test for recklessness with a subjective and objective element was described by Lord Bingham of Cornhill at [41] of R v G and Anor [2003] UKHL 50, [2004] AC 1034. Lord Bingham explained that a person acts recklessly with respect to a circumstance when he is aware of a risk that it exists or will exist (‘subjective element’) and it is, in the circumstances known to him, unreasonable to take the risk (‘objective element’). This test is referred to as the ‘working definition of recklessness’.

As the subjective element in this case could only be inferred from surrounding circumstances, the Court of Appeal stated that the line between the subjective and objective elements in this case is “less distinct” than in other circumstances.

The Court of Appeal considered whether there were any warning signs of unfairness in this case. While accepting that the ICOB Rules did not require disclosure of commission, the Court of Appeal held that “there were plenty of warning signs” that non-disclosure could give rise to unfairness such that Canada Square “must have appreciated that there was a risk at least after April 2008 that the credit relationship … would be regarded as unfair”.

The Court of Appeal also reflected on other factors that would affect the reasonableness of taking the risk (such as the difficulty or expense of avoiding the risk, or a countervailing risk of harm to the claimant) but concluded that there was “no reason why a reasonable person, apprehending the risk that Canada Square must have apprehended, would have decided not to disclose the commission to Mrs Potter”.

The Court concluded that Canada Square deliberately concealed from Mrs Potter a fact, namely the existence and extent of the commission they received, that fact being relevant to her right of action under s 140A-D CCA. The period of limitation did not therefore commence until she discovered the concealment in November 2018. Further or alternatively, she could rely on s 32(1)(b) because Canada Square deliberately committed a breach of their duty towards her under s 140A in circumstances where that breach was unlikely to be discovered for some time.

Supreme Court

Canada Square has brought a further appeal to the Supreme Court, asking it to decide:

the meaning of ‘deliberate’ – whether recklessness is sufficient, or actual knowledge is required; and
the meaning of ‘conceal’ in this case – does this require the defendant to have breached a legal duty to disclose?

The appeal was heard on 14 and 15 June 2022 and the Supreme Court judgment is eagerly awaited.

Comment

S 32 LA 1980 is intended to ensure that the limitation period does not time-bar a claimant whose ignorance of the relevant facts is due to the improper actions of the defendant. While its application is straightforward in relation to an intentional breach of a legal duty, this case highlights the difficulties in establishing the measure of those actions in the absence of an express legal duty on the defendant.

The decision by the Supreme Court should clarify the meaning of “deliberate concealment” under s 32 LA 1980, determining both the basis of the duty and the nature of the mental element required to establish that the concealment was deliberate.

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

On Wednesday 5th July the Court will hand-down judgment in R (on the application of Officer W80) v Director General of the Independent Office for Police Conduct and others [2023] UKSC 24. The Court will determine whether, in the context of police misconduct proceedings, it is open to a reasonable disciplinary panel to make a finding of misconduct if an officer’s honest, but mistaken, belief that his life was threatened was found to be unreasonable. The hand-down will begin at 9:45am in Courtroom 1.

From Wednesday 5th July – Thursday 6th July the Court will hear the case of Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others, on appeal from [2022] EWCA Civ 234. The Court will consider whether the Danish Customs and Tax Administration’s (“SKAT”) claims for the recovery of tax refunds made to the appellants are not admissible before the English courts by reason of Rule 3(1) of Dicey, Morris & Collins on the Conflict of Laws, which says that “English courts have no jurisdiction to entertain an action… for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State”. The hearing will begin at 10:30am in Courtroom 1.

The following Supreme Court judgments remain outstanding: (As of 07/07/23)

East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22nd June 2021
Canada Square Operations Ltd v Potter, heard 14th June 2022
Chief Constable of the Police Service of Northern Ireland and another v Agnew and others (Northern Ireland), heard 14th-15th December 2022
Smith and another v Royal Bank of Scotland, heard 12th January 2023
Republic of Mozambique (acting through its Attorney General) v Privinvest Shipbuilding SAL (Holding) and others, heard 24-25th January 2023
R (PACCAR Inc and others) v Competition Appeal Tribunal and others, heard 16th February 2023.
Lifestyle Equities C.V. and another v Ahmed and another, heard 20th February 2023
Thaler v Comptroller-General of Patents, Designs and Trade Marks, heard 2nd March 2023
The Manchester Ship Canal Company Ltd v United Utilites Water Ltd No 2, heard 6th March 2023
R (on the application of Palmer) v Northern Derbyshire Magistrates Court and another, heard 8th March 2023
Secretary of State for Transport v Curzon Park Ltd and others, heard 19th April 2023
Independent Workers Union of Great Britain v Central Arbitration Committee and another, heard 25th April 2023
R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care, heard 27th April 2023
R (on the application of Imam) v London Borough of Croydon, heard 3rd May 2023
McCulloch and others v Forth Valley Health Board (Scotland), heard 10th May 2023.
Polmear and another v Royal Cornwall Hospitals NHS Trust, heard 15th May 2023.
R (on the application of Afzal) v Secretary of State for the Home Department, heard 7th June 2023.
Herculito Maritime Ltd and others v Gunvor International BV and others, heard 14th June 2023.
Zubaydah v Foreign and Commonwealth Office and others, heard 14th June 2023.
TUI Ltd v Griffiths, heard 21st June 2023.
R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others, heard 21st June 2023.
Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd, heard 26th June 2023.
SkyKick UK Ltd and another v Sky Ltd and others, heard 28th June 2023.
Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others, heard 5th July 2023.

In this post, Anna Walsh (Partner) and Nicole Ellerby (Associate) in CMS’ defendant medical malpractice team consider the awaited decision from the Supreme Court in the Scottish case of McCulloch and Ors v Forth Valley Health Board [2021] CSIH 21.

Overview

The appeal of the decision in McCulloch and Ors v Forth Valley Health Board [2021] CSIH 21 was heard by the Supreme Court on 10 May 2023. The issues appealed to the Supreme Court concern the legal test to be applied when determining whether an alternative course of treatment is reasonable in addition to whether the courts erred in their approach to causation in the previous judgments.

Factual background

The case of McCulloch and Ors v Forth Valley Health Board is a clinical negligence claim brought by Mr McCulloch’s widow and relatives. The claim involves the fatal cardiac arrest of Mr McCulloch following numerous hospital admissions for chest pain, nausea and vomiting between March and April 2012. Following investigations into his symptoms including three echocardiograms, Dr Labinjoh, a consultant cardiologist employed by the defendant, determined that Mr McCulloch’s condition was not life-threatening and discharged him. Mr McCulloch sadly passed away the following day.

The claimants alleged that Dr Labinjoh should have discussed the alternative treatments including anti-inflammatory drugs with Mr McCulloch and that had Dr Labinjoh investigated Mr McCulloch’s condition further with a repeat echocardiogram or prescribed anti-inflammatory drugs, Mr McCulloch’s death would have been avoided.

The first instance decision

Lord Ordinary determined that there had been a breach of duty in respect of the failure to arrange a further echocardiogram but that the causative link had not been proven as the claimant’s case on causation was largely based upon speculation.

Conversely, Lord Ordinary determined that there had not been a breach of duty in terms of failure to prescribe the anti-inflammatory drugs. He could not determine on the expert evidence that Dr Labinjoh’s decision to not prescribe the anti-inflammatory drugs was unreasonable or illogical under the test set out in Bolitho v City and Hackney Health Authority [1998] AC 232 and as such, no breach of duty had occurred.

The final issue that Lord Ordinary considered related to Dr Labinjoh’s alleged duty to discuss the option of anti-inflammatory drugs and the associated risks with Mr McCulloch. In the case of Montgomery (Montgomery v Lanarkshire Health Board [2015] UKSC 11), the Supreme Court held that a doctor “is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” In the first instance decision, Lord Ordinary applied Montgomery but determined that the duty to discuss alternative treatments and the risks involved does not arise where a doctor has rejected a particular treatment on the basis that the circumstances of the case do not indicate that that treatment is required.

Previous appeals

The case was appealed to the Outer House and Inner House of the Court of Session but the claimants failed on both occasions. Both courts held that the duty in Montgomery does not require a doctor to discuss a particular alternative treatment with their patient if the doctor has concluded that it is not a reasonable option. The appellate courts also held that, even if negligence had been established, the claim would still have failed because the claimants had not proven on the balance of probabilities that the alleged negligence caused Mr McCulloch’s death.

Comment

The Supreme Court will no doubt be weighing up the implications of imposing a duty on clinicians to discuss all alternative treatments and the risks involved where clinicians deem that particular treatment option to be unreasonable. Enhancing the duty in this way would certainly be more onerous for clinicians and lead to a change in clinical practice and indeed allegations relating to consent advanced in clinical negligence claims. The decision is eagerly awaited and will provide helpful clarification on the law in this area.

W80, an armed police officer, shot Jermaine Baker dead in a police operation. Mr Baker was implicated in a plot to snatch two individuals from custody. The police had intelligence that the plotters would be in possession of firearms. W80’s account was that during the intervention, Mr Baker’s hands moved quickly up to a shoulder bag on his chest. Fearing for his life and those of his colleagues, W80 fired one shot. No firearm was found in the bag, but an imitation firearm was in the rear of the car.

An investigation was conducted by the Independent Office for Police Conduct (the “IOPC”)’s predecessor, the Independent Police Complaints Commission (the “IPCC”). The IPCC concluded that W80’s belief that he was in imminent danger was honestly held, but unreasonable, and that W80 therefore had a case to answer for gross misconduct on the basis of the civil law test that any mistake of fact could only be relied upon if it was a reasonable mistake to have made. It sent the report and recommendation to the Metropolitan Police Service (the “MPS”), as the appropriate authority for misconduct proceedings against W80. The view of the MPS was that the IPCC had been incorrect as a matter of law in applying the civil law test (which looks to whether an honest but mistaken belief is reasonable) as opposed to the criminal law test of self-defence (which looks to whether the belief is honestly held). The IPCC became the IOPC in January 2018, by virtue of the Policing and Crime Act 2017. After the MPS indicated that it would not follow the (now) IOPC’s recommendation to bring misconduct proceedings against W80, the IOPC directed the MPS to do so. It is that decision which is challenged in this judicial review.

The Divisional Court held that the criminal law test applies. The Court of Appeal held that neither the criminal law test nor the civil law test applies but that a tribunal in police disciplinary proceedings should simply apply the test contained in the wording of the use of force standard in Schedule 2 to the Police (Conduct) Regulations 2012 (“the 2012 Regulations”), namely whether the force used was necessary, proportionate and reasonable in all the circumstances.

Officer W80 appeals against the decision of the Court of Appeal, arguing that the criminal law test applies in police disciplinary proceedings, with which the Metropolitan Police Commissioner agreed. The issue before the Supreme Court was therefore whether it is open to a reasonable disciplinary panel to make a finding of misconduct if an officer’s honest, but mistaken, belief that his life was threatened was found to be unreasonable.

 

HELD: The Court unanimously dismissed the appeal, finding that the test to be applied in disciplinary proceedings in relation to the use of force by a police officer in self-defence is the civil law test.

The Standard of Professional Behaviour in the 2008 and 2012 Police (Conduct) Regulations does not expressly state whether the criminal law test or the civil law test applies in police disciplinary proceedings in relation to the use of force. The Supreme Court concludes that the civil law test is the correct test, for several reasons:

The Standards of Professional Behaviour set out in the 2008 and 2012 Regulations are each framed as statements of objective fact. For instance, “officers … act with integrity”. Accordingly, the standard in respect of the use of force should incorporate the degree of objectivity sought to be achieved under the Regulations, which cannot be achieved using the criminal test which includes a subjective element [94].
The word “knowingly” which had featured in the appropriate standard for police officers in relation to the use of force contained in the 1999 and 2004 Regulations was omitted from the 2008 Regulations and subsequent regulations. When the word “knowingly” was deliberately omitted in the 2008 Regulations, this was a strong textual indicator that the test to be applied thereafter was the objective civil law test [95].
The purpose of the disciplinary arrangements in the 2008 Regulations is not simply blame and punishment, but also achieving learning and development for the officer based on an employment model. This suggests that the civil test is more appropriate, so that the reasonableness of mistakes can be subject to a disciplinary process [96-97].
Interpretation of the Standard of Professional Behaviour as to the use of force in the 2008 Regulations cannot be informed by the Code of Ethics published four years later by the College of Policing in 2012. The Code of Ethics in fact expressly provides that in misconduct proceedings “the formal wording of the [2012 Regulations] will be used” [101];
The Court of Appeal attempted to find coherence between the 2008 and 2012 Regulations, previous iterations of the Regulations, and paragraph 4.4 of the 2012 Code of Ethics (which incorporates the criminal law test). The correct approach however is to interpret the 2008 and 2012 Regulations, acknowledging the fundamental shift brought about in the 2008 Regulations. Paragraph 4.4 of the Code of Ethics is wrong and misleading as it does not reflect the test in the 2008 and 2012 Regulations [102-103].
The obligation placed upon the IOPC Director General to have regard to the 2014 Guidance cannot mean that the Director General can disapply the 2012 Regulations or that he should be informed by para 4.4 of the Code of Ethics [104].
The test to be applied in England and Wales under the 2008 or 2012 Regulations is not informed by the different provisions governing police disciplinary proceedings in Northern Ireland and Scotland.[105].
The test to be applied in England and Wales under the 2008 or 2012 Regulations is not informed by Article 2 of the European Convention on Human Rights, which would not demand the application of the criminal standard in any case [109-111].

The test to be applied in disciplinary proceedings in relation to the use of force by a police officer in self-defence is the civil law test. The IOPC applied the correct test when directing the MPS to bring disciplinary proceedings against the appellant. Accordingly, the appeal should be dismissed [112].

 

For the Judgment, please see:

Judgment (PDF)

For the Press Summary, please see:

Press summary (HTML version)

To watch the hearing, please see:

13 March 2023       Morning session   Afternoon session

14 March 2023       Morning session

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

On Wednesday 12th July the Court will hand-down two judgments:

Philipp v Barclays Bank UK PLC [2023] UKSC 25. The Court will determine three questions, (1) Does the Quincecare duty have any application in a case where the relevant payment instruction was not issued to the bank by an agent of the bank’s customer? (2) If not, should either (i) the Quincecare duty be extended so as to include the obligations contended for by Mrs Philipp in relation to authorised push payment fraud, or (ii) the law recognise or impose such obligations on a paying bank as incidents of its duty to exercise reasonable skill and care in and about executing an instruction? (3) Should the Court determine issues 1 and/or 2 above on a summary judgment and/or strike-out application?
McCulloch and others v Forth Valley Health Board (Scotland) [2023] UKSC 26. In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court held that a doctor “is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” In this appeal, the Supreme Court is asked to decide what test should be applied when assessing whether an alternative treatment is reasonable and requires to be discussed with the patient. More specifically, did the doctor in this case fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation where the doctor’s opinion was that the alternative treatment was not reasonable and that opinion was supported by a responsible body of medical opinion? It is also asked whether the courts below erred in their approach to the issue of causation.

The hand-down will begin at 9:45am in Courtroom 1.

From Wednesday 12th – Thursday 13th July the Court will hear two cases:

Target Group Ltd v Commissioners for His Majesty’s Revenue and Customs, on appeal from [2021] EWCA Civ 1043. The Court will consider whether outsourced loan administration services supplied by Target are standard rated supplies for VAT purposes, or if they fall under the “financial services exemption” under article 135(1)(d) of the Principal VAT Directive, implemented in the Value Added Tax Act 1994 (VATA). The hearing will begin at 10:30am in Courtroom 1.
Byers and others v Saudi National Bank, on appeal from [2022] EWCA Civ 43. The Court will consider whether a claim in knowing receipt requires a claimant to prove a continuing proprietary interest in the property transferred to the defendant in breach of trust, in addition to knowledge on the part of the defendant so as to render his receipt unconscionable. The hearing will begin at 10:30am in Courtroom 2.

The following Supreme Court judgments remain outstanding: (As of 07/07/23)

East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22nd June 2021
Canada Square Operations Ltd v Potter, heard 14th June 2022
Chief Constable of the Police Service of Northern Ireland and another v Agnew and others (Northern Ireland), heard 14th-15th December 2022
Smith and another v Royal Bank of Scotland, heard 12th January 2023
Republic of Mozambique (acting through its Attorney General) v Privinvest Shipbuilding SAL (Holding) and others, heard 24-25th January 2023
R (PACCAR Inc and others) v Competition Appeal Tribunal and others, heard 16th February 2023.
Lifestyle Equities C.V. and another v Ahmed and another, heard 20th February 2023
Thaler v Comptroller-General of Patents, Designs and Trade Marks, heard 2nd March 2023
The Manchester Ship Canal Company Ltd v United Utilites Water Ltd No 2, heard 6th March 2023
R (on the application of Palmer) v Northern Derbyshire Magistrates Court and another, heard 8th March 2023
Secretary of State for Transport v Curzon Park Ltd and others, heard 19th April 2023
Independent Workers Union of Great Britain v Central Arbitration Committee and another, heard 25th April 2023
R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care, heard 27th April 2023
R (on the application of Imam) v London Borough of Croydon, heard 3rd May 2023
Polmear and another v Royal Cornwall Hospitals NHS Trust, heard 15th May 2023.
R (on the application of Afzal) v Secretary of State for the Home Department, heard 7th June 2023.
Herculito Maritime Ltd and others v Gunvor International BV and others, heard 14th June 2023.
Zubaydah v Foreign and Commonwealth Office and others, heard 14th June 2023.
TUI Ltd v Griffiths, heard 21st June 2023.
R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others, heard 21st June 2023.
Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd, heard 26th June 2023.
SkyKick UK Ltd and another v Sky Ltd and others, heard 28th June 2023.
Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others, heard 5th July 2023.
Target Group Ltd v Commissioners for His Majesty’s Revenue and Customs, heard 12th July 2023.
Byers and others v Saudi National Bank, heard 12th July 2023.

On appeal from: Mrs Philipp: [2022] EWCA Civ 318

In 2018 Mrs Fiona Philipp and her husband, Dr Robin Philipp, fell victim to a fraud. They were deceived by criminals into instructing Barclays Bank (the Bank) to transfer £700,000 in two payments from Mrs Philipp’s current account with the Bank to bank accounts in the United Arab Emirates. The instructions were carried out and the money was lost.

In these proceedings Mrs Philipp claims that the Bank is responsible for this loss. She contends that the Bank owed her a duty under its contract with her or under common law not to carry out her payment instructions if – as is alleged – the Bank had reasonable grounds for believing that she was being defrauded.

The Bank applied to have the claim summarily dismissed on the ground that, as a matter of law, it did not owe Mrs Philipp the alleged duty. The High Court (Judge Russen QC) granted summary judgment in favour of the Bank: [2021] EWHC 10 (Comm). But the Court of Appeal allowed an appeal by Mrs Philipp: [2022] EWCA Civ 318. The Court of Appeal accepted her legal argument that, in principle, a bank owes a duty to its customer of the kind alleged: whether such a duty arose on the facts in this case is a question which can only be decided at a trial. From that decision the Bank now appeals to the Supreme Court.

HELD: The Court unanimously allows the appeal.

The type of fraud which occurred in this case is known as “authorised push payment” (APP) fraud – so called because the victim is induced by fraudulent means to authorise their bank to send a payment to a bank account controlled by the fraudster [8]. Whether victims of such frauds should be left to bear the loss themselves or whether banks which have made or received the payments on behalf of customers should be required to reimburse victims of such crimes is a question of social policy for regulators, government and ultimately for Parliament to consider [6], [22]-[24]. It is in fact now the subject of legislation. The Financial Services and Markets Act 2023, which received Royal Assent on 29 June 2023, provides (in section 72) for a mandatory reimbursement scheme (although this scheme does not extend to international payments and therefore would not have applied to this case) [21].

The claim made by Mrs Philipp is based on her contract with the Bank. The contract between a bank and a customer who holds a current account is a very well-established type of contract. Certain obligations have come to be recognised by the common law (and sometimes statute) as obligations implied by law in contracts of this type. These can be added to or altered by express agreement [26]. It would be possible for a bank to agree that it is not to carry out a payment instruction given by its customer if it believes, or has reasonable grounds for believing, that the customer has been tricked by a third party into authorising the payment. But the standard terms of business on which Barclays expressly agrees to provide its services do not contain an express term of this kind [4], [111]-[114]. Mrs Philipp argues that no express term is needed because such a duty is either already recognised by the common law, or can and should be recognised by a principled extension of the existing law, as an implied term of the contract between a bank and its customer [27].

The Court rejects this argument as inconsistent with the ordinary obligations owed by a bank to its customer. Provided the customer’s account is in credit, the ordinary duty of the bank when instructed by its customer to make a payment from the account is to carry out the instruction and make the payment. In making the payment, the bank acts as the customer’s agent. Its duty is strict. Unless otherwise agreed, the bank must execute the instruction and do so promptly. It is not for the bank to concern itself with the wisdom or risks of its customer’s payment decisions [3], [28]-[30].

Mrs Philipp’s argument relies heavily on the case of Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363. In this and other similar cases courts have held that a bank which receives an instruction from an agent of the customer to make a payment owes a duty to its customer not to carry out the instruction if the bank has reasonable grounds for believing that the agent is defrauding the customer by using the money for the agent’s own purposes. But the explanation for these cases is that the authority of an agent to sign cheques or give other payment instructions on the customer’s behalf does not include authority to defraud the customer [72]-[74], [90]-[91]. If the bank were to carry out the instruction it would therefore be making a payment which the customer has not actually authorised the bank to make. Even if the agent is acting in fraud of the customer and therefore does not actually have authority to give the instruction on behalf of the customer, the bank would still generally be entitled to rely on the agent as having apparent authority to do so; but not if the bank has reasonable grounds for believing that the instruction given by the agent is an attempt to defraud the customer and is therefore given without the customer’s authority [86], [89]. In that case if the bank executes the instruction without first making inquiries to verify that the payment has actually been authorised by the customer and the instruction proves to have been given without the customer’s authority, the bank will be in breach of duty. It will also be acting without actual or even apparent authority from the customer and will therefore not be entitled to debit the payment to the customer’s account [90], [97].

This reasoning does not apply to cases like this one where there is no agent involved and the customer herself gives a payment instruction to the bank. In this situation the validity of the instruction is not in doubt. Provided the instruction is clear, no enquiries are needed to clarify or verify what the bank is authorized and required to do. Unless otherwise expressly agreed, the bank’s duty is to execute the instruction and any refusal or failure to do so will be a breach of duty by the bank [5], [100].

In this case each of the two payments made by the Bank was made after Mrs Philipp and her husband had visited a branch in person and given instructions to transfer the money from her account to a bank account in the UAE. They believed, having been duped by the fraudster, that they were transferring the money to “safe accounts”. It is conceded that on the first occasion her husband told the cashier, falsely, that he had had previous dealings with the company to whose account the payment was being sent. On each occasion, before making the transfer, a representative of the Bank telephoned Mrs Philipp to seek her confirmation that she had made the transfer request and wished to proceed with it. On each occasion Mrs Philipp provided the required confirmation [12]. It is beyond dispute, therefore, that she unequivocally authorised and instructed the Bank to make the payments and, in these circumstances, it is impossible to say that the Bank owed her a duty not to comply with her instructions [5].

Mrs Philipp has an alternative claim that the Bank was in breach of duty in not acting promptly to try to recall the payments made to the UAE after being notified of the fraud. In the Court’s view, the questions (i) whether the Bank owed such a duty and (ii) whether there was any realistic chance that the money would have been recovered if attempts had been made to recall the payments sooner cannot be decided without a fuller investigation of the facts. This alternative claim should therefore not have been summarily dismissed [115]-[119].

 

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12 July 2023        Morning session Afternoon session

This case is concerned with the extent to which a doctor is required, under the duty of care owed to a patient, to inform the patient about alternative possible treatments to the one that is being recommended.

In Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”), the Supreme Court held that a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. Following that decision, the main issue in this case is what test should be applied when assessing whether an alternative treatment is reasonable and requires to be discussed with the patient. More specifically, does a doctor fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation where the doctor’s opinion was that the alternative treatment was not reasonable, and that opinion was supported by a responsible body of medical opinion (thus complying with what is sometimes referred to as the ‘professional practice test’ set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 587 (“Bolam”) and in the Scottish case of Hunter v Hanley 1955 SC 200 at 206 (“Hunter”))?

The facts of the case are as follows. On 23 March 2012, Mr McCulloch, aged 39, was admitted to the Forth Valley Royal Hospital complaining of chest pains, nausea and vomiting. Dr Labinjoh, a consultant cardiologist at the hospital, was asked to review an echocardiogram that had been performed on Mr McCulloch. Her review of Mr McCulloch indicated that his presentation did not fit with a standard diagnosis of pericarditis (an inflammation close to the heart). During the next few days, Mr McCulloch’s condition improved. On 30 March, he was discharged home on antibiotics.

A couple of days later Mr McCulloch was readmitted to hospital complaining of the reoccurrence of chest pain. He was given intravenous fluids and antibiotics under the care of the medical team. On 2 April, a nursing entry stated ‘Nil further chest pain’. The next day, Dr Labinjoh visited Mr McCulloch in the Acute Admissions Unit, having reviewed a further echocardiogram. He looked much better than when she had previously seen him and, in answer to her questions, he denied having any chest pain. That being the case, she saw no reason to prescribe any additional medical treatment. In her professional judgement, she did not regard it as appropriate to prescribe non-steroidal anti-inflammatory drugs (“NSAIDs”), such as ibuprofen, because Mr McCulloch was not in pain at the time she saw him and there was no clear diagnosis of pericarditis.

On 6 April, Mr McCulloch was discharged home and remained on antibiotics. On 7 April he suffered a cardiac arrest at home from which he died. His widow and other family members brought an action against Forth Valley Health Board alleging that they were vicariously liable for Mr McCulloch’s death, which they say was caused by negligent treatment by Dr Labinjoh. They alleged that Dr Labinjoh was in breach of her duty of care by failing to inform Mr McCulloch that NSAIDs were a possible treatment option for him. It is alleged that had he been so advised he would have taken a NSAID and would not have died.

The expert evidence indicated that, while some doctors would have prescribed NSAIDs to Mr McCulloch, there was also a responsible body of medical opinion that supported Dr Labinjoh’s approach given that Mr McCulloch was not in pain and there was no clear diagnosis of pericarditis. The Lord Ordinary and the Inner House held that Dr Labinjoh was not negligent in failing to inform Mr McCulloch about the possible treatment by NSAIDs. The widow and family members of Mr McCulloch appealed to the Supreme Court.

 

HELD: The Court unanimously dismissed the appeal.

The correct test to decide what is a reasonable alternative treatment is what can be referred to as the ‘professional practice test’ which is set out in Bolam in England and Wales and Hunter in Scotland. A doctor who has taken the view that a treatment is not a reasonable alternative treatment for a particular patient will not be negligent in failing to inform the patient of that alternative treatment if the doctor’s view is supported by a responsible of body of medical opinion.

Taking a hypothetical example to help explain, in more detail, how the court regards the law as working: a doctor will first seek to provide a diagnosis (which may initially be a provisional diagnosis) having, for example, examined the patient, conducted tests, and having had discussions with the patient. Say that, in respect of that diagnosis, there are ten possible treatment options; the doctor, exercising his or her clinical judgment, decides that only four of them are reasonable and that decision to rule out six is supported by a responsible body of medical opinion. The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments. The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative treatment options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in each treatment option.

It was submitted by counsel for the appellants that the professional practice test was not the correct test to apply and that it is for the court to determine what are the reasonable alternative treatments about which the patient should be informed. But the Supreme Court rejects that submission for a number of reasons including: (i) consistency with what was said in Montgomery [59-62]; (ii) consistency with the two stage test set out in the Court of Appeal decision in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 [63-66]; (iii) consistency with medical expertise and guidance [67-70]; (iv) avoiding an unfortunate conflict in the doctor’s role – in the sense that acceptance of the submission might lead to a doctor having to inform the patient about a treatment that the doctor, supported by a responsible body of medical opinion, considers to be clinically inappropriate for the patient [71]; (v) avoiding bombarding the patient with information [72-73]; and (vi) avoiding making the law uncertain for doctors who have to apply it [74-77]. In essence, the Supreme Court rejects the submission of the appellants because it would constitute an unwarranted extension of the law on the duty of care to inform that was laid down in the Montgomery case.

Applying that law to the facts of this case, Dr Labinjoh was not negligent because her view, that prescribing NSAIDs for Mr McCulloch was not a reasonable treatment option for him because he was not in pain and there was no clear diagnosis of pericarditis, was supported by a responsible body of medical opinion. She was therefore not in breach of her duty of care by not informing him of that possible option.

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10 May 2023          Morning session   Afternoon session

11 May 2023          Morning session

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

On Wednesday 19th July the Court will hand-down judgment in Jones v Birmingham City Council and another [2023] UKSC 27. The Court will determine whether Part 4 of the Policing and Crime Act 2009 is incompatible with Article 6 of the European Convention on Human Rights. The hand-down will begin at 9:45am in Courtroom 1.

From Wednesday 19th July – Thursday 20th July the Court will hear the case of Commissioners for His Majesty’s Revenue and Customs v Fisher and another, on appeal from [2021] EWCA Civ 1438. The Court will consider what is the correct construction of the anti-avoidance provisions in section 739 and following of the Income and Corporation Taxes Act 1988 (and its successor in Chapter 2 of Part 13 of the Income Tax Act 2007)? In particular:

When does an individual make a transfer of assets so as to come within the scope of section 739 ICTA 1988?
When does the motive defence in section 741 ICTA 1988 apply to prevent a charge applying?
In the context of the facts of this case, is the charge applied to the relevant transfer contrary to EU law on free movement?
When is a charge on income too remotely connected from the transfer on which the liability is based?

The following Supreme Court judgments remain outstanding: (As of 21/07/23)

East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22nd June 2021
Canada Square Operations Ltd v Potter, heard 14th June 2022
Chief Constable of the Police Service of Northern Ireland and another v Agnew and others (Northern Ireland), heard 14th-15th December 2022
Smith and another v Royal Bank of Scotland, heard 12th January 2023
Republic of Mozambique (acting through its Attorney General) v Privinvest Shipbuilding SAL (Holding) and others, heard 24-25th January 2023
R (PACCAR Inc and others) v Competition Appeal Tribunal and others, heard 16th February 2023.
Lifestyle Equities C.V. and another v Ahmed and another, heard 20th February 2023
Thaler v Comptroller-General of Patents, Designs and Trade Marks, heard 2nd March 2023
The Manchester Ship Canal Company Ltd v United Utilites Water Ltd No 2, heard 6th March 2023
R (on the application of Palmer) v Northern Derbyshire Magistrates Court and another, heard 8th March 2023
Secretary of State for Transport v Curzon Park Ltd and others, heard 19th April 2023
Independent Workers Union of Great Britain v Central Arbitration Committee and another, heard 25th April 2023
R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care, heard 27th April 2023
R (on the application of Imam) v London Borough of Croydon, heard 3rd May 2023
Polmear and another v Royal Cornwall Hospitals NHS Trust, heard 15th May 2023.
R (on the application of Afzal) v Secretary of State for the Home Department, heard 7th June 2023.
Herculito Maritime Ltd and others v Gunvor International BV and others, heard 14th June 2023.
Zubaydah v Foreign and Commonwealth Office and others, heard 14th June 2023.
TUI Ltd v Griffiths, heard 21st June 2023.
R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others, heard 21st June 2023.
Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd, heard 26th June 2023.
SkyKick UK Ltd and another v Sky Ltd and others, heard 28th June 2023.
Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others, heard 5th July 2023.
Target Group Ltd v Commissioners for His Majesty’s Revenue and Customs, heard 12th July 2023.
Byers and others v Saudi National Bank, heard 12th July 2023.
Commissioners for His Majesty’s Revenue and Customs v Fisher and another, heard 19th-20th July 2023.

The background to this appeal is gang-related violence across the United Kingdom, which is often concentrated in larger cities. Gang-related violence is often connected to drug-dealing, and may also involve firearms offences, obstruction of justice and other illegal activity which threatens public safety and the rule of law. While this activity is usually directed toward other gang members, non-gang-member civilians can be caught in the crossfire.

Birmingham is one UK city which has been heavily affected by gang violence. The Guns and Money Gang (“GMG”) is one of the gangs linked to violence in Birmingham which has been affecting residents there for over thirty years. In February 2016, following investigation by the West Midlands Police, proceedings were commenced by Birmingham City Council against the appellant, Mr Jerome Jones, and 17 other defendants, all of whom were said to be members of the GMG or a rival gang.

Birmingham City Council applied to Birmingham County Court for injunctions to prevent the defendants from engaging in gang-related violence and drug-dealing activity. The injunctions were requested pursuant to section 34 of the Policing and Crime Act 2009 (“the 2009 Act”) and in the alternative under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). Interim injunctions were granted against the defendants in February 2016. The appellant applied for the injunction claim in his case to be transferred the High Court where he applied for a declaration that it was incompatible with article 6 of the European Convention on Human Rights (“ECHR”).

More specifically, the application concerned the question whether article 6(1) ECHR, as given effect within the United Kingdom by the Human Rights Act 1998 (“HRA 1998”), requires the criminal standard of proof (i.e. proof beyond a reasonable doubt) to be satisfied in respect of:

Proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the 2009 Act; and
Proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the 2014 Act.

In the High Court, Burton J held that the proceedings in this case were not in respect of a criminal charge and did not require the application of the criminal standard of proof. The trial of the injunction action was held in the Birmingham County Court in 2017. Judge Wall applied the civil standard of proof (i.e. on the balance of probabilities) to the question of whether Mr. Jones had been involved in gang-related drug-dealing activity and therefore satisfied the first condition in section 34(2) of the 2009 Act. Judge Wall concluded that the condition was satisfied and granted an injunction against Mr. Jones pursuant to sections 34-36 of the 2009 Act, as amended by the Crime and Security Act 2010 and the 2015 Act. The injunction which was granted against Mr Jones included provisions preventing him from entering a large area in central Birmingham, associating with or contacting ten people named in the injunction, and participating in music videos containing material which might relate to gangs operating in Birmingham.

Mr. Jones appealed the order of Burton J to the Court of Appeal. The Court of Appeal held that:

Proceedings under section 34 of the 2009 Act do not involve a criminal charge within article 6(1) of the ECHR; and
The standard of proof for proving the threshold conditions prescribed by section 34 of the 2009 Act for applications for injunctions in respect of gang-related drug-dealing and by section 1(2) of the 2014 Act for applications for injunctions in respect of anti-social behaviour, namely proof on the balance of probabilities, is compatible with article 6 of the ECHR.

Mr. Jones now appeals to the Supreme Court against the decision of the Court of Appeal. It is no longer argued that the proceedings against him under section 34 of the 2009 Act involve a criminal charge within article 6(1) of the ECHR. The principal issues on this appeal are as follows:

Whether the Court of Appeal erred in law by distinguishing and declining to follow the decision of the House of Lords in R (McCann) v Crown Court at Manchester [2003] 1 AC 787 (“McCann”) that the criminal standard of proof should be applied in proceedings in respect of an anti-social behaviour order under section 1, Crime and Disorder Act 1998 (“the 1998 Act”), and in failing to apply that standard of proof to applications for injunctions under section 34 of the 2009 Act and section 1 of the 2014 Act; and
If the Court of Appeal was entitled to depart from the decision of the House of Lords in McCann, whether it, in any event, erred in law in holding that the criminal standard of proof did not need to be applied to the first condition under section 34 of the 2009 Act and section 1(2) of the 2014 Act in order to satisfy the requirements of fairness in article 6(1) of the ECHR when considering whether to make an injunction under either or both of those provisions.

HELD: The Court unanimously dismissed the appeal, holding that Article 6(1) of the ECHR, as given effect by the HRA 1998, does not require the criminal standard of proof to be satisfied in respect of (a) proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity within section 34(2) of the 2009 Act or (b) proof that a person has engaged or threatens to engage in anti-social behaviour within section 1(1) of the 2014 Act. It also held that under Part 4 of the 2009 Act and Part 1 of the 2014 Act Parliament has devised statutory schemes which conform with the requirements of a fair hearing under article 6 of the ECHR.

The Supreme Court finds that there is no authority from the European Court of Human Rights for the proposition that a fair hearing under article 6(1) ECHR requires the application of the criminal standard of proof in circumstances such as those in the present appeal. In fact, Article 6(1) of the Convention does not lay down any rules on the burden or standard of proof, which are essentially a matter for domestic law. While it would be open to the Strasbourg court to develop its jurisprudence on article 6(1) so as to require the application of the criminal standard of proof in such circumstances, there is no sign in its case law to date that such a development is likely.

The McCann case is not authority for the proposition that anti-social behaviour within section 1(1)(a) of the 1998 Act is required to be proved to the criminal standard. The standard of proof under section 1(1)(a) of the 1998 Act was the civil standard of proof on the balance of probabilities and to the extent that any reasoning in the McCann opinions is to the contrary effect, it is wrong. McCann does not support the proposition that the criminal standard of proof must be applied to the requirements of evidence upon which a gang injunction can be granted under the 2009 and 2014 Acts.

In respect of the 2009 Act and 2014 Act, Parliament has expressly provided that the standard of proof applicable in relation to the granting of gang injunctions in both Acts shall be the civil standard. In the light of this express provision, there is no room for the courts to decide that as a matter of common law fairness the criminal standard should be applied. The adoption of the civil standard was a deliberate step which Parliament considered was justified by the seriousness of the behaviour being addressed by these injunctions and the purpose of the statutory scheme, namely to prevent and protect against gang violence. Furthermore, Parliament has incorporated into the 2009 Act and 2014 Act procedural safeguards which secure the fairness of any trial in relation to the granting of a gang injunction.

The standard applicable to the relevant issues under the 2009 Act and the 2014 Act is therefore the civil standard. The court’s task is to determine whether on the balance of probabilities the conduct identified took place.

 

For the Judgment, please see:

Judgment (PDF)

For the Press Summary, please see:

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To watch the hearing, please see:

30 January 2023    Morning session   Afternoon session

31 January 2023    Morning session   Afternoon session