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This appeal is about whether the appellant, Nigerian National Petroleum Corporation (NNPC), should have to put up a further USD 100m security (in addition to USD 80m already provided) in respect of a Nigerian arbitration award which the respondent, IPCO (Nigeria) Ltd (IPCO), has been seeking since November 2004 to enforce in this jurisdiction. The enforcement proceedings have, therefore, a long history and it is necessary to set some of it out, to understand the context. The arbitration award has an even longer history. It is dated 28 October 2004 and is for USD152,195,971 plus Naira 5m plus interest at 14% per annum. The arbitration took place under a contract dated 14 March 1994 whereby IPCO undertook to design and construct a petroleum export terminal for NNPC. The contract was subject to Nigerian law and contained an agreement to arbitrate disputes in accordance with the Nigerian Arbitration and Conciliation Act 1988. The award once made was challenged by NNPC before the Nigerian Federal High Court. Initially, the challenge was for what have been called non-fraud reasons. As from 27 March 2009, NNPC, relying on evidence supplied by a former IPCO employee, Mr Wogu, has also challenged the whole award on the basis that IPCO procured it in substantial part by fraudulent inflation of the quantum of its claim using fraudulently created documentation. Both Field J [2014] EWHC 576 (Comm) and the Court of Appeal (Christopher Clarke, Burnett and Sales LJJ) [2015] EWCA Civ 1144 concluded that the fraud challenge was made bona fide, that NNPC has a good prima facie case that IPCO practised a fraud on the tribunal and that NNPC has a realistic prospect on that basis of proving that the whole award should be set aside. It is unnecessary to describe the vicissitudes which befell the challenges before the Nigerian courts. Suffice it to say that they have been closely examined in the English courts on more than one occasion; and that the Court of Appeal has concluded (para 164, per Christopher Clarke LJ) that it would not be profitable to seek to determine which party (if either) is more to blame for the delay, which appears, to me in large measure, to result from the workings of the Nigerian legal system. At the outset of the English proceedings, Steel J made an ex parte order for enforcement dated 29 November 2004. This led in turn to an application by NNPC for the ex parte order to be set aside under sections 103(2)(f) and 103(3) of the Arbitration Act 1996 (the 1996 Act), or alternatively for its enforcement to be adjourned under section 103(5), pending the resolution of the non-fraud challenges in the Nigerian courts. After an inter partes hearing, Gross J held on 27 April 2005 [2005] EWHC 726 (Comm) that NNPC should pay IPCO a sum of just over USD 13m (which, at that stage, when only the non-fraud challenge had been raised, appeared indisputably due), and that NNPC should provide security in the sum of USD 50m in respect of the adjournment. The USD 13m ordered was duly paid, and the security was also provided. At that stage, it was envisaged that the non-fraud challenge in Nigeria might be resolved with relative despatch. This was not to be, and on 17 July 2007 IPCO applied to have Gross Js order reconsidered on the basis that the Nigerian challenge appeared now to be unlikely to be determined for several years. Tomlinson J in a judgment dated 17 April 2008 concluded that the change of circumstances, catastrophic though it is did not justify a complete re-opening of the exercise undertaken by Gross J. Nevertheless, he ordered NNPC to pay a further net sum of around USD 52m (after taking account of USD 7.7m already paid), plus USD 26m by way of interest. He gave permission to appeal and ordered a stay pending appeal, conditional upon NNPC providing additional security to the value of USD 30m. This additional security was also provided. Tomlinson J adjourned any decision regarding enforcement of the balance of the award under section 103(5). The Court of Appeal upheld Tomlinson Js order, but it was further stayed pending the outcome of a petition to appeal to the House of Lords. Before this petition was determined (by refusal of leave), NNPC on 2 December 2008 moved to stay Tomlinson Js order on the ground that it had now obtained evidence of fraud. Flaux J on 16 December 2008 stayed Tomlinson Js order to enable NNPC to make an application under section 103(3) based on this new evidence and/or under section 103(5) for a further adjournment of enforcement. He ordered that NNPC maintain the security totalling USD 80m which had been ordered by Gross J and Tomlinson J. By application dated 18 December 2008 NNPC applied to vary Tomlinson Js order so as to provide that recognition or enforcement of the Award dated 28 October 2004 be refused pursuant to section 103(3) of the Arbitration Act 1996 because it would be contrary to public policy to do so; alternatively, the decision on whether to enforce the Award be adjourned pursuant to section 103(5) of the Arbitration Act 1996 with liberty to apply. The grounds given for refusal of recognition or enforcement were that there had been a material change of circumstances and/or Tomlinson J had been misled into believing that the Award had been properly obtained and/or public policy. The ground given for the alternative of adjournment was that the Nigerian courts would or might set aside the Award for fraud, false evidence or forgery. On 27 March 2009 NNPC applied to amend its pleadings in the Nigerian proceedings to raise the fraud challenge (an application adjourned by consent and never determined). In this light, a consent order dated 17 June 2009 was made in the English proceedings, whereby inter alia, upon NNPC undertaking to maintain the USD 80m security until further order of the court, those parts of Tomlinson Js order dated 17 April 2008 ordering payment of sums were set aside (para 1), and the decision on enforcement of the Award was adjourned pursuant to section 103(5) of the Arbitration Act 1996 (para 2). Delay continued to dog the Nigerian proceedings, and on 24 July 2012 IPCO renewed its application to enforce the Award in England, again on the ground that there had been a sufficient change of circumstances to justify this. By order dated 1 April 2014 made after a six day hearing in October 2013 Field J dismissed this application, but added that, even if it had been appropriate to reconsider enforcement in England afresh, he would have refused it, on the ground that NNPC had a good prima facie case of fraud, and that this case should continue to trial in Nigeria. The security, which NNPC had undertaken by the consent order to maintain, in these circumstances continued. The Court of Appeal took a different view. It held that there had been a material change of circumstances, and decided to cut the Gordian knot caused by the sclerotic process of the proceedings in Nigeria (paras 172-173). By order dated 10 November 2015 it therefore allowed IPCOs appeal, set aside Field Js order (by para 1) and ordered as follows (by paras 2 and 3): 2. Upon condition that the respondent provides security as set out at paragraph 5 below: (a) the proceedings shall be remitted to the Commercial Court for determination, pursuant to section 103(3) of the Act, as to whether the arbitral award dated 28 October 2004 (the Award) should not be enforced in whole or in part because it would be against English public policy so to do (the Section 103(3) Proceedings); (b) any further enforcement of the Award shall be adjourned, pursuant to section 103(5) of the Arbitration Act 1996, pending determination of the Section 103(3) Proceedings. 3. Upon any failure of the respondent to comply with the said condition the adjournment shall lapse and the appellant may enforce the Award in the same manner as a judgment or order of the court to the same effect and the appellant shall immediately be entitled to demand payment under the Guarantee and Further Guarantee (as defined in the Order of Mr Justice Tomlinson dated 17 April 2008) [ie the two existing guarantees totalling USD 80m]. 5. The security to be provided by the respondent must be provided by 4 pm on 4 December 2015 by way of first class bank guarantee issued in London in similar form to the Guarantee and the Further Guarantee in the sum of US$ 100,000,000. This security is to be in addition to that provided by those Guarantees. The parties have subsequently agreed that not only the fraud issue, but also the non- fraud issues should be decided should be decided in the English enforcement proceedings. The order dated 10 November 2015 did not reflect the Court of Appeals initial conclusions as to the appropriate disposition. They were set out in a draft, circulated on 4 September 2015 in the usual way, by para 175 of which the Court proposed to require NNPC to provide security for the whole of the principal and interest then claimed, around USD 300m. This led to a request by NNPC to the Court for it, exceptionally, to reconsider the position, on the ground that the order for security was made without jurisdiction or was alternatively wrong in principle and/or manifestly wrong. On the former point, NNPC referred to Soleh Boneh International Ltd v Government of the Republic of Uganda [1993] 2 Lloyds Rep 208 and Dardana Ltd v Yukos Oil Co (Dardana v Yukos) [2002] EWCA Civ 543; [2002] 2 Lloyds Rep 326. After receiving submissions from both parties, the Court of Appeal issued two judgments, neither in precisely the same terms as the original draft. It rejected the submission of lack of jurisdiction, but acceded to the request that it reconsider the quantum of security, which it reduced to a requirement for a further USD 100m. In the Courts first, main judgment, Christopher Clarke LJ, said: Decision 174. In my judgment the appropriate course to take is as follows. First, we should order that IPCOs application to enforce should be adjourned pending the determination by the Commercial Court pursuant to section 103(3) of the Act as to whether the Award should not be enforced in whole or in part because it would be against English public policy so to do. 175. Second, we should make that order conditional upon the provision by NNPC of further security in a form and within a time period to be agreed, or if not agreed, to be determined by this Court, in the sum of $ 100m. 176. Third, we should order that, if such security is not provided within a period which we shall specify from the time when the form of security is agreed or determined, IPCO shall have permission to enforce the Award. 177. Fourth, we should order that, if such security is provided, then, if and to the extent that it is determined by a final order of the courts of England and Wales that the enforcement of the Award is not contrary to the public policy of England & Wales, IPCO may enforce it. 178. Fifth, there shall be Permission to apply to the Commercial Court. In the Courts shorter supplementary judgment [2015] EWCA Civ 1145 dealing more extensively with the issue of jurisdiction, Christopher Clarke LJ said: Discussion 18. In the present case it seems to us that in reality it is NNPC, the Award debtor, which sought the continuance of the adjournment in the face of IPCOs attempt to enforce the Award and bring the adjournment to an end. In its respondents notice NNPC said that, if the judges contingent exercise of his discretion was in error, he was nevertheless correct to conclude that it was appropriate to adjourn under section 103(5) so that the challenge could proceed in Nigeria inter alia because, if the court were minded to enforce the Award, it would still have to decide whether the enforcement of the award was contrary to English public policy. In other words it was relying on the possibility of a later English public policy challenge as a reason to uphold the continuance of the adjournment, ordered by consent on 17 June 2009, pending resolution of the fraud challenge in Nigeria, rather than suggesting that enforcement should only abide a section 103(3) determination. 19. So far as the ability of IPCO to enforce any judgment is concerned, much will depend on whether NNPC has sufficient assets in this country, or any other country in which an English judgment may be enforced, to ensure that it can swiftly receive the fruits of any judgment in its favour. 20. Although NNPC is a large business we have no details of its assets within such countries, or the form in which they are held, how long they have been held there, or how readily any trading arrangements might be changed so as to render enforcement difficult or impossible. 21. where there is a very large award, delay without security is inherently likely to prejudice the award creditor and certainly risks doing so. We regard that as a factor which should incline us towards providing some security to ensure that if the fraud challenge fails, IPCO will not be faced with a further round of attempts to avoid payment of the Award or a situation in which its prospects of recovery have worsened. 22. Another material factor is the need in a case involving such extraordinary delay, extending over a decade, to provide a strong incentive to securing finality. NNPL [sic] says that, now that the fraud challenge is to be heard in London, the prospects of excessive delay are much reduced. Hopefully so. But the history of these proceedings, and their inordinate delay, persuades us of the need to provide an incentive, indeed something of a goad, to progress. 23. Lastly we bear in mind that the delay which has already taken place has meant that the ratio between the amount of security in place and the amount due has greatly decreased. Interest under the award is running at 14% per annum. Gross J ordered that security of $ 50m be provided 10 years ago. $ 50m x 14% x 10 = $ 70m. The same exercise applied to the $ 30m security provided in 2008 produces about another $ 31.5m ($ 30m x 14% x 7.5). NNPC now appeals, by permission of this Court, against the Court of Appeals order for security, in essence on the ground that the order was made without jurisdiction or wrong in principle and/or was illegitimate in circumstances where NNPC has a good prima facie case of fraud entitling it to resist enforcement of the whole award. Sections 100 to 104 of Part III of the 1996 Act address the recognition and enforcement of foreign awards. They give effect to the United Kingdoms obligations under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. Section 103 is central to the resolution of this appeal. It reads: 103. Refusal of recognition or enforcement. (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases. (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves - (a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity; (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; (c) that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; (d) that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration (but see subsection (4)); (e) that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place; (f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made. (3) Recognition or enforcement of the award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to recognise or enforce the award. (4) An award which contains decisions on matters not submitted to arbitration may be recognised or enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted. (5) Where an application for the setting aside or suspension of the award has been made to such a competent authority as is mentioned in subsection (2)(f), the court before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the recognition or enforcement of the award. It may also on the application of the party claiming recognition or enforcement of the award order the other party to give suitable security. Section 103(2) and (3) give effect to article V, while section 103(5) gives effect to article VI, of the New York Convention. Articles V(1) specifies as a ground on which recognition and enforcement may be refused that: (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Article VI reads: If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. In this light it was common ground, and it is in any event clear, that sections 103(2)(f) and (5) are both addressing a situation where an award sought to be recognised or enforced in this jurisdiction has been or is under challenge in an overseas jurisdiction where, or under the law of which, it was made. The issue on this appeal falls under two heads: first, whether the Court of Appeals order was justified by reference to section 103(5) of the 1996 Act; and, second, whether it was justified by reference to general English procedural rules. In the latter connection, reliance is placed on CPR 3.1(3) as well as, indirectly, on section 70(7) of the 1996 Act. CPR 3.1(3) provides that: Where the court makes an order, it may - a) make it subject to conditions, including a condition to pay a sum of money into court; and specify the consequences of failure to comply b) with the order or a condition. Section 70(7) is one of a group of sections appearing under the heading Powers of the court in relation to award in Part I of the 1996 Act. Part I concerns arbitrations that (unlike the present) have their seat in England, Wales or Northern Ireland: see section 2(1). The group starts with section 66, addressing enforcement generally: Enforcement of the award (1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. (2) Where leave is so given, judgment may be entered in terms of the award. (3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award. The right to raise such an objection may have been lost (see section 73). (4) Nothing in this section affects the recognition or enforcement of an award under any other enactment or rule of law, in particular under Part II of the Arbitration Act 1950 (enforcement of awards under Geneva Convention) or the provisions of Part III of this Act relating to the recognition and enforcement of awards under the New York Convention or by an action on the award. Section 66 must be read with section 81(1), providing that: Saving for certain matters governed by common law. (1) Nothing in this Part shall be construed as excluding the operation of any rule of law consistent with the provisions of this Part, in particular, any rule of law as to - (a) matters which are not capable of settlement by arbitration; (b) (c) arbitral award on grounds of public policy. the effect of an oral arbitration agreement; or the refusal of recognition or enforcement of an Sections 67, 68 and 69 concern challenges to awards for lack of substantive jurisdiction (section 67), serious irregularity (section 68) or by way of appeal on a point of law (section 69), in each case in proceedings initiated before the court by the award debtor. They therefore contrast with section 66(3), which, read with section 81, enables an award debtor to challenge enforcement on grounds there indicated by resisting enforcement proceedings initiated by the award creditor. Section 70(1) provides that the following provisions, inter alia, apply to an application or appeal under sections 67, 68 or 69 of the Act: (6) The court may order the applicant or appellant to provide security for the costs of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with. (7) The court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with. CPR 62.18(9) provides that, within 14 days of service of an ex parte order giving permission to enforce under section 66, the defendant may apply to set aside the order and the award must not be enforced until after any application made by the defendant within that [14 day] period has been finally disposed of. I start with the relationship between the Court of Appeals order and the scheme of section 103 of the Act. The order was that the fraud issue, raised as an issue of public policy under section 103(3), should, for the purposes of determining whether enforcement should be ordered, be decided in the English, rather than Nigerian, proceedings. But the decision of the fraud issue was made conditional upon the provision by NNPC of a further USD 100m security, failing which the Court gave leave to enforce without any decision of the fraud issue. Upon provision of such security, on the other hand, the Courts order provided that any further enforcement of the award should be adjourned under section 103(5) pending decision of the fraud issue. The position is therefore that the Court held that an enforcing courts decision upon an issue, raised by an award debtor under section 103(3) or, as must follow, section 103(2) could (and in the instant case should) be made conditional upon the award debtors provision of security in respect of the award. Further, it regarded the delay which would follow while that decision was being reached by the enforcing court as involving an adjournment within the meaning of the words the court may adjourn the decision on the recognition or enforcement of the award in section 103(5). In both these respects, the Court of Appeal fell in my opinion into error. First, nothing in section 103(2) or (3) (or in the underlying provisions of article V of the New York Convention) provides that an enforcing court may make the decision of an issue raised under either subsection conditional upon the provision of security in respect of the award. In this respect, there is a marked contrast with section 103(5), which specifically provides that security may be ordered where there is an adjournment within its terms. Second, the Court erred in regarding its order that the English court should as the enforcing court decide the fraud issue as involving adjournment of the decision on that issue within the terms of section 103(5). This error has two aspects. First, as stated in para 15 above, section 103(5) concerns the situation where an enforcing court adjourns its decision on enforcement under section 103(2) or (3), while an application for setting aside or suspension of the award is pending before the court of the country in, or under the law of which, the award was made. This was the situation when orders were made by Gross J on 12 April 2005, by Flaux J on 16 December 2008 and by consent on 17 June 2009. But it ceased to be the situation for the future, once the Court of Appeal held that the issue whether fraud was an answer to enforcement should no longer await the outcome of the Nigerian proceedings, but should be decided by the English courts. Although the literal trigger to the application of section 103(5) is that an application has been made to the courts of the country where, or under the law of which, the award was made, the adjournment which it contemplates is pending the outcome of that application. Once it is held that there should be no such further adjournment, there is no basis for ordering further security under section 103(5). The Court of Appeal, in ordering that any further enforcement of the award should be adjourned under section 103(5) pending determination of the section 103(3) proceedings, was, therefore, misusing the word in the context of section 103(5). Of course, any decision of an issue raised under section 103(2) or (3) may take a court a little time, even if it is only while reading the papers, or adjourning overnight or for a number of weeks, in order to consider and take the decision. But that does not mean that the decision was being adjourned within section 103(5). On the contrary, delays of this nature are all part of the decision-making process. The second aspect is that section 103(5) contemplates an order for security being made on the application of the party claiming recognition or enforcement of the award. It is true that in Dardana v Yukos, when giving the reasons of all members of the court, I said, at para 31: I am fully prepared to proceed on the basis that section 103(5) provides the court with jurisdiction to make such an order, in a case where it, either of its own motion (cf Soleh Boneh) or at the instance of the party seeking [sic] recognition or enforcement, decides to adjourn, pending a foreign application to set aside by the party resisting recognition or enforcement. Christopher Clarke LJ in his supplementary judgment, para 6, questioned how section 103(5) was thought to provide jurisdiction to the court to act of its own motion. It is unnecessary to consider that question here, although I shall return to para 6. What is however important to note is an evident error in the passage cited, which no one appears to have spotted. The word seeking after which I have inserted sic should clearly have read resisting, to reflect the actual language of section 103(5). That is also evident from the actual decision in Dardana v Yukos and its supporting reasoning. In Dardana v Yukos, the award debtor (Yukos) was challenging a Swedish award in Stockholm, but its primary response to an application to enforce in England was that the English courts should themselves decide whether the award should be recognised or enforced under section 103(2)(b) and/or (d). (Only in the alternative, did Yukos apply for an adjournment under section 103(5).) For a considerable time, the award creditor (Dardana) shared the award debtors stance, that the issues should be decided under section 103(2)(b) and/or (d). But, during the hearing, Dardana appreciated that its case was less strong than it had thought. It then changed direction, and rather than risk losing in England, resisted determination of Yukoss case in England, and itself in reality sought an adjournment pending the outcome of the Swedish proceedings (see judgment, para 23). In these circumstances, the Court of Appeal held in Dardana v Yukos that the English courts had no power under section 103(5) to order Yukos to provide security on the tacit basis that, if Yukos did not do this, immediate enforcement would be ordered against it (paras 26-31). Security pending the outcome of foreign proceedings is, in effect, the price of an adjournment which an award debtor is seeking, not to be imposed on an award debtor who is resisting enforcement on properly arguable grounds. The reasoning in Dardana v Yukos underlines both these aspects. I have added italics for emphasis: 27. In most cases it would be the party resisting recognition or enforcement, who had already begun proceedings to set aside in the foreign state, who would be seeking an adjournment of the recognition or enforcement proceedings, pending resolution of the foreign application. An order for security, on the application of the party seeking recognition or enforcement, would be the price of the adjournment sought by the other party, and would protect the party seeking recognition or enforcement during the adjournment. There is no power under section 103(5) to order security except in connection with an adjournment. If no foreign application had been made to set aside, the domestic proceedings under section 103(2) would have had to be fought out to a conclusion; and there would be no power under section 103(5) to order security during the period which that took. There could of course, in an appropriate case be an application for freezing relief 28. In a case where a party resisting enforcement applies under section 103(2), but later seeks an adjournment of its application pending resolution of foreign proceedings in which it is also challenging the award, adjournment may as a matter of general principle be ordered on condition that security be provided (failing which the order for adjournment will be vacated and the issues under section 103(2) will be determined). 29. The reality in the present case is that the appellants were obliged to provide the security, on the tacit basis that, if they did not do so, then enforcement would be ordered unconditionally against them, despite their outstanding application under section 103(2). The provision for security was, in other words, made a condition not of any adjournment sought by the appellants, but of avoiding immediate and final enforcement; and, failing its provision, the appellants outstanding application under section 103(2) would have been liable to be struck out or dismissed, without determination of its merits. I do not consider that as a legitimate sanction to attach to any order made for the provision of security in the present circumstances. It would involve overriding or fettering an outstanding application under section 103(2), in a way for which sections 100-104 provide no warrant. It is inconsistent with paragraph 31.9 of the Arbitration Practice Direction, and the concluding words of Mr Justice Steels order, whereby the award was not to be enforced, if the appellants applied (as they did) to set aside his order, until the application was finally disposed of. Paragraph 31.9 of the Arbitration Practice Direction has now become CPR 62.18, set out in para 21 above. In the present case, the Court of Appeals order involves the same error as that identified in the first and third italicised passages. It required security, not as the price of a further adjournment falling within section 103(5), but as the price of the decision of an issue under section 103(3). The Court was lifting the adjournments previously ordered pending the outcome of the Nigerian proceedings, not ordering an adjournment. It had no power under section 103 to make a decision of the properly arguable case raised by NNPC under section 103(3) conditional on NNPC providing further security. The Court of Appeals reasoning at paras 174-177 of its main judgment and para 18 of its supplementary judgment demonstrates the same errors that are evident in its order. Para 18 by focusing on NNPCs (alternative) submission that, if Field Js contingent exercise of his discretion (to refuse enforcement) was wrong, there should be an adjournment under section 103(5) case misses the point. What is critical here is not what submissions were advanced (contingently), but whether there was in the event an adjournment (and, if there was, whether it was effectively at the award debtors instance as well as pending the outcome of the relevant challenge in the overseas court of the country in which, or under the law of which, the award was made). Here, no such adjournment was ordered by the Court of Appeal, which on the contrary decided that the fraud issue should be resolved in the English proceedings. There was therefore no adjournment under section 103(5) onto which to hang, as the price, a requirement of further security. The Court of Appeals further reasons at paras 19-23 in its supplementary judgment do not go to the jurisdiction or power to order security under section 103, though they might have gone to the exercise of any discretion, if (contrary to my conclusion) any such discretion had existed under section 103. The perceived inadequacy by the time of the Court of Appeals order of the security of USD 80m validly ordered as a condition of past adjournments under section 103(5) was no basis for ordering further security when further adjournment was being refused. Mr Michael Black QC suggested that, when the matter came before Field J and the Court of Appeal, there was no outstanding challenge by NNPC under section 103(3). If that were so, it is difficult to understand what either court was doing in considering and deciding, at some length, whether NNPC had shown a good prima facie case of fraud, and, in the case of the Court of Appeal, making an order for its decision by the English courts. Further, NNPC had made a formal challenge by its application dated 18 December 2008; the decision on that challenge was adjourned, pending the outcome of the Nigerian proceedings, by the consent order dated 17 June 2009; and the whole purpose and effect of the Court of Appeals decision that there had been a change of circumstances justifying the reopening of the consent order was to lift the adjournment and to order that the challenge be decided in the English proceedings. For these reasons, the Court of Appeals order for security was not within the scope of any jurisdiction or power conferred by section 103 of the 1996 Act. Mr Black has, however, submitted that the order can be and was justified on grounds not directly considered in Dardana v Yukos, and touched on, if at all, then only very tangentially by the Court of Appeal. At the basis of this submission is the proposition that the New York Convention, and sections 100-104 of the 1996 Act, leave untouched the ordinary procedural powers of the English courts in respect of proceedings before them. I have no difficulty accepting the general correctness of that in relation to the conduct of a challenge to recognition or enforcement being decided under section 103(2) and/or (3): see further para 45 below. But it provides no basis for making the raising for decision of a properly arguable challenge under these sections conditional upon the provision of security for the award. providing: In support of his submission, Mr Black points to article III of the Convention, Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. Although article III is not itself part of English law, Mr Black submits that we can and should, on familiar principles, view sections 100-104 of the 1996 Act in its light. I also have little difficulty with that as a general proposition, although the possible differences between the meaning of the word conditions used twice in article III have given rise to much discussion. I am prepared for present purposes to proceed on the basis, without deciding, that the second reference to conditions refers in effect to principles or rules of procedure (as Mr Black submits with the weighty support of Professor Albert van den Bergs commentary on The New York Arbitration Convention of 1958 (1981), p 239). Mr Blacks submission is that sections 100-104 only occupy the field of procedural matters to a limited extent. The second paragraph of article VI (which led domestically to the second paragraph of section 103(5)) was, according to the Summary Record of the Seventeenth Meeting of the United Nations Conference on International Commercial Arbitration held on 3 June 1958, inserted to address the risk of abuse of what became article VI by proceedings started in the country where, or under whose law, the award was issued without a valid reason purely to delay or frustrate the enforcement of the award; it may, he submits, have been necessary to regulate this limited procedural aspect at an international level, because individual states might not have their own procedural mechanisms to do so; but it did not follow that states could not attach procedural conditions to challenges made under article V (ie domestically, under section 103(2) and (3)). The submission continues by pointing to the English courts general power to make conditional orders, including orders on its own motion under CPR 3.1(3)(a) and 3.3. In this connection, Mr Black is able to submit that this is in fact what the Court of Appeal must, or must also, have had in mind when it made its order. In para 6 of his supplementary judgment, commenting on the passage from Dardana v Yukos set out in para 27 above, Christopher Clarke LJ said this: It is not wholly clear to us how section 103(5) was thought to provide jurisdiction to the Court to act of its own motion but, in any event, a court which is asked to adjourn, or continue an adjournment of, enforcement is entitled to impose conditions on the exercise of its discretion to do so: CPR 3.1(3)(a); and may do so of its own initiative: CPR 3.3. Section 103(5) cannot be treated as precluding the exercise of that right. Finally, Mr Black argues that the English courts would, contrary to article III, be discriminating procedurally against foreign awards compared with awards in arbitrations where the seat is English, if they could not order security against a party who was merely mounting a challenge under section 103(2) or (3). It is in this connection that he deploys section 70(7) of the 1996 Act. He relies on reasoning of Rix LJ (supported to some extent by that of Moses LJ, but opposed by that of Buxton LJ) in Gater Assets Ltd v NAK Naftogaz Ukrainiy (Gater) [2007] EWCA Civ 988; [2007] 2 Lloyds Rep 588; [2008] Bus LR 388. Rix LJ considered that an award debtor resisting enforcement by destroying the formal validity of the award, either as a matter of substantive jurisdiction or serious irregularity or as a matter of public policy is in substance in a position of a claimant analogous to that of an award debtor under an English award seeking to challenge an award under sections 66 to 69 of the Act, and is liable accordingly to be made subject to an order for security for costs: see paras 77-80 (see also per Moses LJ para 93, and, to the contrary effect, per Buxton LJ paras 101-104). On Mr Blacks case, therefore, if English procedural law does not enable an award creditor under a Nigerian arbitration award to apply and, if the court thinks fit, to obtain security for the award from an award debtor who is challenging enforcement under section 103(2) or (3), then it is imposing on the award creditor substantially more onerous conditions, in the sense of procedural rules, than those applicable to English awards under section 70(7) of the Act. Mr Blacks case on these points fails, in my opinion, at a number of levels. First, the Court of Appeal in Gater was addressing an issue of security for the future costs of a challenge under section 103(3), which raises very different considerations to an issue of security for the past award itself. Even then, although Rix LJ did not make this the ground of decision because it had not been argued, he noted that the Convention might be regarded as a complete code, precluding the making of a decision under section 103(2) or (3) conditional upon the provision of security for costs: para 82. More importantly, in relation to the provision of security for the award itself, he said this, at para 81: Field J, however, was prepared to refuse enforcement, on the ground of failure to provide the security for costs ordered. That was the order that Field J made, setting aside the enforcement order if the security was not provided, and doing so on a ground not expressly within the Convention. There is no express basis in the New York Convention for that condition. Enforcement may be refused only if one of the exceptions within article V is made good. Security is discussed in the Convention, but only security for the award itself and only in the context of an adjournment of enforcement proceedings pending an application to set aside or suspend the award to the competent authority of the country in which, or under the law of which, that award was made: article VI, reproduced in section 103(5) of the 1996 Act. That is not just an example of a circumstance in which such security might be ordered, but is the only circumstance in which it might be: see the decision of this court in Dardana Ltd v Yukos Oil Co [2002] All ER (Comm) 819, para 27. In my opinion, the conditions for recognition and enforcement set out in articles V and VI of the Convention do constitute a code. Just as article V codifies the grounds of challenge (see Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), para 16-137), so the combination of articles V and VI must have been intended to establish a common international approach, within the field which they cover. They contemplate that a challenge under article V may only be made conditional upon the provision of security in one situation falling within their scope. Had it been contemplated that the right to have a decision of a properly arguable challenge, on a ground mentioned in article V (domestically, section 103(2) and (3)), might be made conditional upon provision of security in the amount of the award, that could and would have been said. The Convention reflects a balancing of interests, with a prima facie right to enforce being countered by rights of challenge. Apart from the second paragraph of article VI, its provisions were not aimed at improving award creditors prospects of laying hands on assets to satisfy awards. Courts have, as noted in Dardana v Yukos, other means of assisting award creditors, which do not impinge on award debtors rights of challenge, eg disclosure and freezing orders. It is unnecessary in this context to address the issue which divided the Court of Appeal in Gater, whether or how far an award debtor challenging an award should or may be regarded as being in the position of a claimant, rather than a defendant. Suffice it to say that I would leave open the correctness of Rix LJs view (Gater, paras 77-79) that there is no material difference at a domestic level between challenges falling within the scope of section 66 of the Act, read with section 81(1), and challenges falling within sections 67, 68 or 69. The fact that section 70(6) and (7) only apply to the latter, and not to challenges under section 66, highlights this point. If it were appropriate or relevant to have regard to the position regarding an English award, the true domestic analogy with, at any rate, the present fraud challenge under section 103(3) would be a challenge under section 66 read with section 81(1)(c). On that section 70(7) cannot on any view offer any direct assistance to Mr Blacks submission. In fact, however, the challenges permissible under section 103(2) and (3) embrace, but do not distinguish between, matters which could in some cases be raised both under section 66 and under either section 67 or 68 and in other cases only under one of the latter two sections. Domestic analogies are in these circumstances unlikely to illuminate the operation of the internationally-based provisions of sections 100-104. In any event, I do not regard the argument based on article III and section 70(7) as having any force. First, article III may serve as a caution against interpreting or applying English procedural provisions in a sense which discriminates against Convention awards by imposing substantially more onerous rules of procedure. But this is only so long as the conditions laid down in the following articles of the Convention do not otherwise provide. As I have indicated, I consider that articles V and VI constitute a code relating to security for an award when the issue is enforcement or adjournment; and that the code excludes requiring security for an award in the face of a properly arguable challenge under article V, except in so far as article VI provides. Second, even if that were not so, I would have some doubt whether an inability to order security on a challenge to an overseas award could constitute a substantially more onerous rule of procedure in relation to recognition or enforcement than a rule allowing such security in the case of an English award. Third, be that as it may, the fact is that the 1996 Act contains in relation to Convention awards no equivalent to section 70(7) in relation to English awards. Whatever article III might require in that respect (if anything), it is not found in the 1996 Act, and no amount of consistent interpretation can alter the Act in that respect. Fourth, there is first instance authority, which in my opinion accurately reflects what would be expected as a matter of principle in relation to the provision of security for the amount of an award in issue, that the power under section 70(7) will only be exercised if the challenge appears flimsy or otherwise lacks substance: A v B (Arbitration: Security) [2010] EWHC 3302 (Comm); [2011] 1 Lloyds Rep 363; [2011] Bus LR 1020, para 32 per Flaux J; Y v S [2015] EWHC 612 (Comm); [2015] 1 Lloyds Rep 703, para 33 per Eder J. That cannot by any stretch be said of NNPCs fraud challenge in the light of the evidential material set out in the Court of Appeals judgment. Finally, I turn to CPR 3.1(3). In my opinion, this takes IPCO nowhere. It is a power, expressed in general terms, to impose conditions on orders. It cannot authorise the imposition, on a person exercising its right to raise a properly arguable challenge to recognition or enforcement, of a condition requiring security for all or any part of the amount of the award in issue. Its obvious subject matter is the imposition of a condition as the price of relief sought as a matter of discretion or concession, not the imposition of a fetter on a person exercising an entirely properly arguable right. The Court of Appeal was right to underline in Huscroft v P & O Ferries Ltd (Practice Note) [2010] EWCA Civ 1483; [2011] 1 WLR 939, paras 18- 19 that rule 3.1(3) does not give the court a general power to impose conditions on one or other party whenever it happens to be making an order, and that its purpose is to enable the court to grant relief on terms and that the court should focus attention on whether the condition (and any supporting sanction) is a proper price for the party to pay for the relief being granted, satisfying itself also that the condition it has in mind represents a proportionate and effective means of achieving that purpose. CPR 3.1(3) may be relevant where the court only permits the pursuit on terms of a claim or defence which in some respect is problematic: see Deutsche Bank AG v Unitech Global Ltd [2016] EWCA Civ 119, paras 72-81 (to which the appellants solicitors very properly drew the Supreme Courts attention after the handing down in draft of this judgment). But it is entirely clear that CPR 3.1(3) has no relevance on this appeal. That is not to say that CPR 3.1(3) or the courts other general procedural powers may never become relevant in the context of an issue being decided under section 103(2) or (3). I have noted that the courts power to make disclosure and freezing orders is one means by which an award may indirectly be secured, without impinging on a defendants right to raise challenges under section 103. The court may in the course of such a challenge make all sorts of other procedural orders, and back them where necessary with sanctions. But none of this has anything to do with this appeal. NNPC here had not misconducted themselves or given any sort of cause for the exercise of any procedural discretion to make an order against them or to condition it in any way. Some of the factors to which the Court of Appeal alluded in paras 19 to 23 of its supplementary judgment might have had some possible relevance had NNPC in some way defaulted in the pursuit of a challenge under section 103. As it is, paras 19-21 amount to no more than concern that the award might be difficult to enforce in practice, while para 23 links this to a perception that the previously ordered security now appears insufficient. These were not admissible bases for attaching a condition to the future exercise in this jurisdiction of a right of challenge under section 103(3). The wish in para 22 to provide a goad to progress was also an inadmissible basis for securing the award, particularly in the absence of any finding of any relevant prior default by NNPC from which it needed relief, and is (one might add, if it had had any potential relevance) difficult to understand as a matter of fact in circumstances where the fraud issue will from now be case- managed by the Commercial Court. I should not finish without addressing a point made by NNPC in a footnote - doubtless to avoid too obvious a hostage to fortune on the main issue - on the last page of its written case. The footnote records that NNPC also considers that it follows that NNPC can allow the guarantees given previously (in a total sum of US$ 80m) to lapse without affecting its right to have its defence under section 103(3) of the 1996 Act determined prior to IPCO being permitted to enforce the Award. I do not accept that. The security of USD 80m was the agreed price of adjournments in 2005 and 2008-2009 which have lasted in total nearly 12 years. NNPC undertook by the consent order dated 17 June 2009 to maintain the guarantees until further order of the Court. That the adjournment will now lapse is no reason for the Court to permit the existing security to lapse, still less for any argument that NNPC is entitled to allow it to lapse. The guarantees should continue in place until further order, pursuant to NNPCs undertaking. For the reasons I have given, the appeal must in my opinion be allowed, the Court of Appeals order attaching conditions (in particular, the requirement to provide further security of USD 100m) in relation to the challenges raised by NNPC must be set aside and NNPCs fraud and non-fraud challenges must be remitted to the Commercial Court for decision free of any such further conditions. The parties will have 21 days to make submissions as to the precise form of order and as to costs. For the reasons I have given, the appeal must in my opinion be allowed, the Court of Appeals order attaching conditions (in particular, the requirement to provide further security of USD 100m) in relation to the challenges raised by NNPC must be set aside and NNPCs fraud and non-fraud challenges must be remitted to the Commercial Court for decision free of any such further conditions. The parties will have 21 days to make submissions as to the precise form of order and as to costs. |
Act) provide as follows: Sections (1) and (2) of section 123 of the Insolvency Act 1986 (the 1986 (1) A company is deemed unable to pay its debts (a) [non compliance with a statutory demand for a debt exceeding 750 presently due] (b) to (d) [unsatisfied execution on judgment debt in terms appropriate to England and Wales, Scotland and Northern Ireland respectively] (e) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. (2) A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. A company in the situation described in subsection (1)(e) is often said to be cash flow insolvent. A company in the situation described in subsection (2) is often said to be balance sheet insolvent, but that expression is not to be taken literally. It is a convenient shorthand expression, but a companys statutory balance sheet, properly prepared in accordance with the requirements of company law, may omit some contingent assets or some contingent liabilities. There is no statutory provision which links section 123(2) of the 1986 Act to the detailed provisions of the Companies Act 2006 as to the form and contents of a companys financial statements. This appeal is concerned with the construction and effect of section 123(1)(e) and (2) as incorporated into the documentation of an issue of loan notes. The statutory provisions were incorporated, with some small modifications, into the conditions applicable to loan notes issued in the course of a securitisation transaction comprising a portfolio of non conforming mortgage loans secured on residential property in the United Kingdom. The issuer is Eurosail UK 2007 3BL plc (Eurosail), one of many similar single purpose entities (SPEs) set up by the Lehman Brothers group (but off the balance sheet of any of that groups companies) not long before its collapse. Eurosail is the principal respondent to this appeal, and it has a cross appeal on a subs idiary issue. The other respondent appearing before this court, BNY Corporate Trustee Services Ltd (the Trustee) is part of the BNY Mellon Group. It is the trustee for the holders (Noteholders) of loan notes of various classes issued by Eurosail. It has adopted a neutral attitude in the proceedings (as explained in its written case), and has not appeared by counsel before this court. But it will, in the event that the appeal succeeds and the cross appeal fails, have an important judgment to make as to material prejudice to the Noteholders interests. In 2007 Eurosail (described in the documentation as the Issuer) acquired a portfolio of mortgage loans, secured on residential property in England and Scotland and denominated in sterling, to the principal amount of approximately 650m. Most of the mortgages were regarded as non conforming in that they did not meet the lending requirements of building societies and banks. This purchase was funded by the issue on 16 July 2007 of loan notes in five principal classes (A, B, C, D and E) comprising 14 different subclasses, some denominated in sterling, some in US dollars and some in euros. In the designation of the classes a indicated that the loan was denominated in euros, b US dollars and c pounds sterling. The senior (class A) notes were divided into three sub classes, denominated in one of the three currencies, designated and issued as follows: A1b A1c A2a A2b A2c A3a A3c US$200,000,000 102,500,000 64,500,000 US$100,000,000 63,000,000 215,000,000 64,500,000 The B, C, D and E Notes were issued in smaller amounts, with variations in currency but no subclasses having different priorities as between themselves. There were also some notes designated as ETc revenue backed notes. The total sum raised was just under 660,000,000. After payment of costs and expenses of the issue the initial surplus of assets over prospective liabilities (if taken at face value) was quite small. The provisions of section 123(1) and (2) of the 1986 Act are incorporated into an important provision in the co nditions of issue of the Notes (the Conditions). Condition 9(a) (events of default) provides that the Trustee may on the occurrence of any of five specified events (an Event of Default) serve on Eurosail a written notice (an Enforcement Notice) declaring the Notes to be due and repayable. In some circumstances the Trustee is obliged to serve such a notice. In the absence of an Event of Default the A1 Notes were repayable in 2027 at latest (in fact they have already been repaid, as have the revenue backed notes). All the other Notes are repayable in 2045 at latest. The Events of Default include (Condition 9(a)(iii)): The Issuer, otherwise than for the purposes of such amalgamation or reconstruction as is referred to in sub paragraph (iv) below, ceasing or, through or consequent upon an official action of the Board of Directors of the Issuer, threatens to cease to carry on business or a substantial part of its business or being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts Under a proviso to Condition 9(a), an occurrence falling within sub paragraph (iii) counts as an Event of Default only if the Trustee certifies to Eurosail that it is, in the Trustees sole opinion, materially prejudicial to the interests of the Noteholders. The service of an Enforcement Notice would have immediate and far reaching consequences for all the Noteholders (o ther than the A1 and ETc Noteholders, whose Notes have already been fully redeemed). As described in more detail below, an Enforcement Notice shifts their rights from the regime prescribed in Condition 2(g) (priority of payments prior to enforcement) to the regime prescribed in Condition 2(h) (priority of payments post enforcement). Under the latter regime Noteholders of Class A3 (A3 Noteholders) rank pari passu with Noteholders of Cla ss A2 (A2 Noteholders) for repayment of principal. That is in contrast with the present regime, under which A2 and A3 A2 payments (clause 2(g)(vi)) but Noteholders rank pari passu for interest Noteholders have priority over A3 Noteholders in receiving repayments of principal out of funds representing principal sums received on the redemption of mortgages in the portfolio (those funds being included in the definition of Actual Redemption Funds in the preamble to the Conditions): Condition 5(b)(i)(2) and (3). It is in these circumstances that the construction of section 123(2) of the 1986 Act, as incorporated into Condition 9(a)(iii), has assumed such importance. Eurosail, together with those of the A2 Noteholders who appeared below, succeeded before Sir Andrew Morritt C [2010] EWHC 2005 (Ch), [2011] 1 WLR 1200, and the Court of Appeal [2011] EWCA Civ 227, [2011] 1 WLR 2524. The Court of Appeal considered that section 123(2) should be interpreted broadly and in line with standards of commercial probity: A balance has to be drawn between the right of an honest and prudent businessman, who is prepared to work hard, to continue to trade out of his difficulties if he can genuinely see a light at the end of the tunnel, and the corresponding obligation to put up the shutters, when, by continuing to trade, he would be doing so at the expense of his creditors and in hose business considerations which a reasonable businessman is expected to observe. disregard of t (That is a quotation from paragraph 216 of the Report of the Review Committee on Insolvency Law and Practice (1982) (Cmnd 8558), better known as the Cork Report, reflecting the view of Professor Goode; this passage is quoted in para 54 of the judgment of Lord Neuberger MR in the Court of Appeal). The appellant A3 Noteholders say that this passage is not in point. They have argued for a much stricter construction. They have emphasised that a companys inability to pay its debts is no more than a precondition to the exercise of the courts jurisdiction, which is discretionary, to make a winding up order or an administration order. The precondition to be satisfied should be, they have argued, transparent and certain, leaving scope for the exercise of discretion on the hearing of the petition. There has also been argument as to whether the statutory text (as incorporated in an amended form, and also allowing for possible future legislative amendment) must bear the same meaning as it would in actual winding up proceedings, or whether it can and should, as incorporated, take account of the commercial context of the Conditions. Those, in outline summary, are the positions of the opposing parties on the appeal. The cross appeal, which is relevant only if the appeal is successful, is concerned with the so called Post Enforcement Call Option (PECO) which is a subsidiary (but technically important) part of the securitisation transaction. Before going further into the complexities of the appeal I would comment that the image invoked by Professor Goode of an honest and prudent trader working hard to turn his business round relates, as was pointed out by Mr Moss QC for the appellants, to the law of insolvency as it applies to individuals. Even if translated into corporate terms, it has very little bearing on the situation in which Eurosail now finds itself. Its present financial position and future prospects are not matters for which Eurosail and its managers merit either praise or criticism, since those matters are almost entirely out of their control. They depend on three imponderables: first, (since the currency and interest rate hedging arrangements with the Lehman Brothers group have failed, leaving Eurosail with a claim in its insolvency) the movements of the US dollar and the euro relative to the pound sterling; secondly, movements in LIBOR or equivalent interest rates on loans denominated in those three currencies; and thirdly, the performance of the United Kingdom economy in general, and the United Kingdom residential property market in particular, as influencing the performance of the mortgage portfolio. The transaction documents The legal documents relating to the securitisation issue are, as Lord Neuberger MR put it, regrettably and forbiddingly voluminous. Apart from the Conditions themselves there was a formal trust deed made between the Trustee and Eurosail, a Liquidity Facility Agreem ent, currency swaps agreements, a Fixed/Floating Swap Agreement, a BBR Swap Agreement and other agreements relating to administrative matters (there is a full list of transaction documents in the definition of that expression in the preamble to the Conditions). Several expressions used in the Conditions involve a paperchase to other documents in order to find their definitions. Mr Moss opened the documents very lightly, moving rapidly from Condition 9(a)(iii) to concentrate his submissions on the construction of section 123(1) and (2) of the 1986 Act. Mr Dicker QC (for Eurosail) went into the Conditions more fully to pave the way for his contextual arguments. Without pre judging those arguments I think it is necessary, if only in order to appreciate the consequences of the opposing arguments, to have an outline understanding of how the SPE (which counsel concurred in describing as a closed system or wrapper) operated before the collapse of Lehman Brothers, of how it operates now (after the collapse of Lehman Brothers but before any Enforcement Notice), and of how it would operate after the service of an Enforcement Notice. Interest is payable on all unredeemed Notes quarterly in arrears, the first payment having been made on 13 September 2007. The annual rate of interest is linked to LIBOR or its dollar or euro equivalents (Condition 4(c)(i)), exceeding that rate by a margin (the Relevant Margin as defined in the preamble) which varies from 0.07% for A1b Notes to 4% for E Notes. Mortgage interest received by Eurosail (the principal component in the Available Revenue Fund) cascades down the metaphorical waterfall set out in the 24 sub paragraphs of Condition 2(g) (priority of payments prior to enforcement). The first claims on the income stream are for remuneration, charges and expenses; then (sub paragraph (iv)) sums due to the Liquidity Facility Provider, and (sub paragraph (v), but only until the collapse of Lehman Brothers) sums payable under or in connection with the Fixed/Floating Swap Agreement and the BBR Swap Agreement (but not any currency swaps). Payments to currency swaps counterparties were linked to interest payments to particular classes of Noteholders, so that payments to counterparties in respect of A Noteholders come into the provision for payment of interest to those Noteholders, which is made pari passu as between all the A sub classes (Condition 2(g)(vi)). The next priority (Condition 2(g)(vii)) was for payment off of any A Principal Deficiency (another expression defined in the preamble), but in practice such a deficiency could arise only if all the junior classes of Notes had become valueless. Next in the waterfall come similar groups of provisions for payment of interest, sums due to the currency swaps counterparties (and any B Principal Deficiency) in respect of B Notes (Condition 2(g)(viii) and (ix)) and so on for all the other classes (Condition 2(g)(x) to (xv)). On 15 September 2008 Lehman Brothers Holdings Inc (LBHI), the guarantor of the swaps counterparty, Lehman Brothers Special Financing Ltd (LBSF) filed for Chapter 11 bankruptcy, as did LBSF on 3 October 2008. The swaps were terminated on 13 November 2009. Eurosail has made a claim against LBHIs and LBSFs bankrupt estates for about $221,000,000. At the time of the hearings below, the claim had not been admitted and no distribution has been made in respect of it. During the last three years sterling has depreciated significantly against both the euro and the dollar, but the prevailing low level of interest rates has resulted in a surplus (excess spread) of mortgage interest received by Eurosail, which has enabled it to continue to pay in full the interest on all the outstanding Notes of every class. In the meantime, both before and after the collapse of Lehman Brothers, Eurosail received principal sums from time to time as principal secured by the mortgages was repaid, either by way of partial or total redemption by mortgagors, or by enforcement of the security against mortgagors who were in default. These sums have been and are at present applied under Condition 5(b)(i) as Actual Redemption Funds, on each date for payment of interest, in repaying the principal of the Notes in the order of priority A1 (now fully repaid), A2, A3, B, and so on. There is a proviso to Condition 5(b) under which the order of priority may be altered. The first possible variation (proviso (A)) applies if all the A1 and A2 Notes have been redeemed and other (favourable) specified conditions are satisfied: the A3 to E1c Notes then rank pari passu. Conversely, under the other variation (proviso (B)), which applies if there is an A Principal Deficiency, priority is granted to the A Notes as a single class ranking pari passu. Events of default are regulated by Condition 9. The events specified in t in Condition 9(a) are, apart from that alre ady set out (para 5 above): defaul payment for three business days of any principal or interest due on any of the Notes; breach by Eurosail of any of its obligations and failure to remedy the breach the breach given by the Trustee; the (if remediable) for 14 days after notice of making of an order or resolution for the winding up of Eurosail, otherwise than for an approved amalgamation or reconstruction; and the initiation of insolvency or ious administration proceedings, or the levying of execution (subject to var qualifications which it is unnecessary to set out in detail). If the Event of Default is an event under Condition 9(a)(iii) or a breach of Eurosails obligations, there is a further requirement that the Trustee shall have certified to Eurosail that such event is, in its sole opinion, materially prejudicial to the interests of the Noteholders. For this purpose the Trustee may under the trust deed (as recorded in Condition 2(c)) have regard only to (i) the interests of the A Noteholders if, in the Trustees sole opinion, there is a conflict between the interests of the A Noteholders (or any Class thereof) and the interests of the B Noteholders, the C Noteholders, the D Noteholders and/or the E Noteholders. This provision does not indicate how the Trustee is to exercise its discretion in the event of a conflict (such as there now potentially is) between the interests of the A2 Noteholders and the A3 Noteholders. If there is an Event of Default (and, in the cases just mentioned, it is materia lly prejudicial) the Trustee may at its discretion serve an Enforcement Notice on Eurosail. Moreover it is obliged to do so if requested or directed (i) by holders of at least 25% of the outstanding Most Senior Class of Notes (defined as meaning the A Noteholders, rather than a subclass of them) or (ii) by an extraordinary resolution of the holders of that class. This court was not shown any evidence, and did not hear any submissions, as to whether either of those requirements would be likely to be satisfied in practice. On service of the Enforcement Notice the Notes become immediately due and payable and the Noteholders security becomes enforceable (Condition 9(b)). Thereupon the order of priority shifts fro m that in Condition 2(g) to that in Condition 2(h). It is unnecessary to go through all the detail of Condition 2(h). The all important change is that under Condition 2(h)(v) the available funds are applicable to pay pari passu and pro rata (1) all amounts of interest and principal then due and payable on the A1c Notes, the A2c Notes and the A3c Notes and (2) [subject to provisions about currency swaps that have now lapsed] any interest and principal then due and payable on the A1b Notes, the A2a Notes, the A2b Notes and the A3a Notes, respectively. In practical terms, the A2 Notes would no longer have priority, in terms of principal, to the A3 Notes. The opening words of condition 2(h) express the Trustees obligation as being to make payments to the extent of the funds available to [Eurosail] and from the proceeds of enforcement of the Security (with exceptions that need not be detailed). The penultimate provisio n of Condition 2(h) provides: The Noteholders have full recourse to [Eurosail] in respect of the payments prescribed above and accordingly are entitled to bring a claim under English law, subject to the Trust Deed, for the full amount of such payments in accordance with Condition 10 (Enforcement of Notes). Mr Dicker did not challenge Mr Mosss submission that the opening words do not contradict the penultimate provision, and that seems to be correct. The opening words are directed to the Trustees obligations, not to those of Eurosail. Condition 5(j) contains the PECO (Post Enforcement Call Option) which is the subject of the cross appeal. This option (which has been given effect to as a separate written agreement between the Trustee and a company named or referred to as OptionCo) is regarded in the industry as a means of achieving the effect of limited recourse without the adverse tax consequences that would then have followed from a simple express non recourse provision. The operative part of Clause 5(j) is as follows: All of the Noteholders will, at the request of the holder of the Post Enforcement Call Option, sell all (but not som e only) of their holdings of the Notes to the holder of the Post Enforcement Call Option, pursuant to the option granted to it by the Trustee (as agent for the Noteholders) to acquire all (but not some only) of the Notes (plus accrued interest thereon), for the consideration of one euro cent per Euro Note outstanding, one dollar cent per Dollar Note outstanding and one penny per Sterling Note outstanding (and for these purposes, each Global Note shall be one Note) in the event that the Security for the Notes is enforced, at any time after the date on which the Trustee determines that the proceeds of such enforcement are insufficient, after payment of all other claims ranking higher in priority to the Notes and pro rata payment of all claims ranking in ter the application of any such equal priority to the Notes and af proceeds to the Notes under the Deed of Charge, to pay any further principal and interest and any other amounts whatsoever due in respect of the Notes. Bankruptcy remoteness Bankruptcy remoteness was the expression used by Standard & Poors credit rating agency, and generally in the industry, to describe one criterion for a SPE to obtain a satisfactory credit rating for its loan notes (see European Legal Criteria for Structured Finance Transactions published by Standard & Poors (28 August 2008), and the comments of the Chancellor [2011] 1 WLR 1200, para 8 and Lord Neuberger of Abbotsbury MR [2011] 1 WLR 2524, para 28). This is not the place to consider either the reliability of the credit rating agencies judgments on Notes secured by sub prime mortgages, or the influence that their judgments seem to have had in the market (caused, some have suggested, by the industrys general inability to comprehend the risks inherent in its own creations). But the notion of bankruptcy remoteness, even if imperfectly understood, underlay many features of the Conditions and the arrangements of which they formed part. In developing his contextual argument that this court should (if necessary) mould the meaning of section 123(1) and (2), as incorporated into Condition 9(a)(3) so as to take account of commercial realities, Mr Dicker drew particular attention to five features of the arrangements. They are set out and discussed in section B2 of Eurosails case. Most of them have been mentioned already, at least in passing, but it may be helpful to bring them together in summary form. They are relevant not only (arguably) to the issue of construction but also (without room for argument) to determining the likely length of deferment of Eurosails long term liabilities under the Conditions, in the absence of an Event of Default which triggers an Enforcement Notice. These points are covered at some length in the witness statements of Mr Mark Filer, a director of Wilmington Trust SP Services (London) Ltd, Eurosails corporate services provider. The five salient features of the Conditions and the supporting documentation bearing on the likely deferment of Eurosails obligations in respect of principal and interest are as follows: (1) Condition 2(g) defines Eurosails obligations for payment of interest on the Notes (after remuneration, charges and expenses) in terms of the Available Revenue Fund (see para 12 above). If that source is insufficient for payment of interest on any of the Junior Notes (that is, those which are not A Notes) the obligation is deferred (while accruing interest) under Condition 6(i) and (j), if necessary until the final redemption date in 2045. (2) Temporary shortages of income can be provided for by the Liquidity Facility (reimbursements to which have a high order of priority under Condition 2(g)(iv)). (3) As to principal, redemption of Notes (other than the redeemed A1 Notes and the revenue backed Notes) is not due until 2045. Until then redemption is limited to the Actual Redemption Funds (as defined in the preamble) which are applied in the appropriate order of priority under Condition 5(b) (see para 14 above). (4) Any loss of principal resulting from default on mortgages is termed a Principal Deficiency and is recorded in the Principal Deficiency Ledger (the detailed provisions as to this are found not in the Conditions but in Clauses 8 and 9 of the Cash/B ond Administration Agreement). If there is surplus income from the mortgage payments, the excess spread can be used to reduce or eliminate any Principal Deficiency on whatever is the highest ranking class of Notes with a deficiency. Recoupment of a Principal Deficiency takes priority to the payment of interest on lower ranking Notes (see para 12 above). (5) Finally there is the PECO, which is intended to produce the same, or a similar result as an express limited recourse provision (see paras 18 and 19 above). The legislation This court was taken to the legislative history of sections 122 and 123 of the 1986 Act, and it will be necessary to refer to it in some detail. But it may be better to start with the sections themselves. The 1986 Act was a consolidating statute which gave effect to the amendments made by the Insolvency Act 1985. Section 122(1), as amended, provides seven cases in which a company may be wound up by the court, of which the most important are the last two: (f) the company is unable to pay its debts, (g) the court is of the opinion that company should be wound up. it is just and equitable that the Section 123(1) then sets out five cases (stated or summarised in para 1 above) in which a company is deemed unable to pay its debts. The four cases in paragraphs (a) to (d) of section 123(1) are true deeming provisions. A companys non compliance with a statutory demand, or non satisfaction of execution of a judgment debt, is a matter that can be proved quite simply, usually by a single short witness statement. If proved, it establishes the courts jurisdiction to make a winding up order, even if the company is in fact well able to pay its debts. If however a debt which has been made the subject of a statutory demand is disputed on reasonable grounds, the petitioner is adopting what has been called a high risk strategy, and the petition may be dismissed with indemnity costs: In Re a Company 12209 of 1991 [1992] BCLC 865, 868 (Hoffmann J). Section 123(1)(e) is significantly different in form: if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. This is not what would usually be described as a deeming provision. It does not treat proof of a single specific default by a company as conclusive of the general issue of its inability to pay its debts. Instead it goes to that very issue. It may open up for inquiry a much wider range of factual matters, on which there may be conflicting evidence. The range is wider because section 123(1)(e) focuses not on a single debt (which under paragraphs (a) to (d) has necessarily accrued due) but on all the companys debts as they fall due (words which look to the future as well as to the present). The words as they fall due did not appear in the legislation until the Insolvency Act 1985. Similarly the express reference in section 123(2) to the test of the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities did not appear before the Insolvency Act 1985. In the present case both the Chancellor and the Court of Appeal treated the present legislative provisions as materially different from those previously in force: [2011] 1 WLR 1200, para 24; [2011] 1 WLR 2524, para 53. Yet when this point was raised during the passage of the Insolvency Bill in 1985, the government spokesman in House of Lords, Lord Lucas of Chilworth, stated: Commons Amendment No 458 gives effect to the way in which the courts have interpreted section 518 of the Companies Act [1985]; that was previously section [223] of the 1948 Act. We are not seeking to amend the law by this amendment; merely to give effect to that interpretation by the courts, namely, that section 518 contains both a cash flow and a balance sheet test. Hansard (HL Debates, 23 October 1985, col 1247) In these circumstances it is necessary to look quite closely at the legislative history. In considering it I have derived great assistance from a variety of academic commentary, including an article by Dr Peter Walton, Inability to pay debts: beyond the point of no return? [2013] JBL 212. The starting point is sections 79 and 80 of the Companies Act 1862 (25 & 26 Vict, c 89), the general structure of which is similar to that of sections 122 and 123 of the 1986 Act. Section 80(4) of the 1862 Act stated the test simply as: tisfaction of the court that the Whenever it is proved to the sa company is unable to pay its debts. However, it is to be noted that under section 158, once a winding up order had been made, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value. So a contingent or prospective creditor could not present a petition, but if another creditor presented a petition and secured a winding up order, contingent and prospective liabilities were admitted to proof. In In Re European Life Assurance Society (1869) LR 9 Eq 122 Sir William James V C dismissed a petition for the winding up of a company which had issued large numbers of life policies and annuity contracts, and appeared to be in financial difficulties. In an extempore judgment he decided, with very little reasoning, that (p127) inability to pay debt solutely due. He then proceeded to consider at greater length, but to dismiss, the alternative just and equitable ground in section 79(5) of the Companies Act 1862. As to this ground he said at p128: s must refer to debts ab And in my view of the law of the case it would be just and equitable to wind up a company like this assurance company if it were made out to my satisfaction that it is, not in any technical sense but, plainly and commercially insolvent that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain as to make the court feel satisfied that the existing and probable assets would be insufficient to meet the existing liabilities. I take it that the court has nothing whatever to do with any question of future liabilities, that it has nothing whatever to do with the question of the probability whether any business which the company may carry on tomorrow or hereafter will be profitable or unprofitable. That is a matter for those who may choose to be the customers of the company and for the shareholder to consider. 13 Page So here, it seems, the Vice Chancellor was applying a balance sheet test, but only to existing liabilities, in the context of the just and equitable ground. He did not refer to any of the authorities that had been cited. It may be unfortunate that his judgment has come to be regarded as a leading case. Shortly afterwards the law was changed in relation to life offices by the Life Assurance Companies Act 1870 (33 & 34 Vict, c 61), which was effectively the beginning of the modern statutory regulation of life assurance. There was no general change until section 28 of the Companies Act 1907, which made an amendment which was then consolidated by the Companies (Consolidation) Act 1908. The latter provided in section 130(iv) that a company should be deemed to be unable to pay its debts: if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company. The amendment made by the Companies Act 1907 was introduced on the recommendation of the Loreburn Committee (Report of the Company Law Amendment Committee) (1906) (Cd 3052), para 43, which was influenced by section 21 of the Life Assurance Comp anies Act 1870. The amendment is described by Dr Walton [2013] JBL 212, 228 as an abbreviated version of section 21. But there is not a very close parallel, since section 21 referred to a life office being insolvent (meaning, apparently, balance sheet insolvent) rather than its being unable to pay its debts. But the admission of contingent and prospective liabilities, and especially long term liabilities, must tend to focus attention on balance sheet considerations. Thus in In Re Capital Annuities Ltd [1979] 1 WLR 170, 185, Slade J observed: From 1907 onwards, therefore, one species of inability to pay its debts specifically recognised by the legislature as a ground for the making of a windi ompany incorporated under the Companies Acts was the possession of assets ng, contingent and prospective insufficient to meet its existi liabilities. ng up order in respect of any c Essentially the same wording appeared in section 223(d) of the Companies Act 1948 and in section 518(e) of the Companies Act 1985. Two cases decided under section 223(d) call for mention. The first is In Re a Company (also referred to as Bond Jewellers) [1986] BCLC 261, decided by Nourse J on 21 December 1983. Like In Re European Life Assurance Society, it was an extempore judgment given without citation of authority, in order to avoid delay, but it has been much cited. It was referred to in both Houses of Parliament during the committee stages of the Insolvency Bill. It concerned a tenant company with a propensity for postponing payment of its debts until threatened with litigation. Nourse J felt unable to make an order under section 223(d), and considered, but ultimately did not make an order, on the just and equitable ground in section 222(f). The case is of interest as illustrating (at p 263) that the phrase as they fall due, although not part of the statutory text, was understood to be implicit in section 223(d). It is also of interest for the judges observation on the second point in section 223(d) (now embodied, in different words, in section 123(2) of the 1986 Act): into account the contingent and Counsel says that if I take prospective liabilities of the company, it is clearly insolvent in balance sheet terms. So indeed it is if I treat the loans made by the associated companies as loans which are currently repaya ble. However, what I am required to do is to take into account the contingent and prospective liabilities. That cannot mean that I must simply add them up and strike a balance against assets. In regard to prospective liabilities I must principally consider whether, and if so when, they are likely to become present liabilities. The second case, Byblos Bank SAL v Al Khudhairy [1987] BCLC 232, was a considered judgment of Nicholls LJ (with whom Slade and Neill LJJ agreed) delivered after 11 days of argument. It concerned the disputed validity of the appointment of a receiver in June 1985, before either the Companies Act 1985 or the Insolvency Act 1985 was in force. The ostensible ground for appointment of the receiver was not made out, but the bank relied on a new ground, section 223(d). Nicholls LJ observed (p 247): Construing this section first without reference to authority, it seems to me plain that, in a case where none of the deeming paras (a), (b) or (c) is applicable, what is contemplated is evidence of (and, if necessary, an investigation into) the present capacity of a company to pay all its debts. If a debt presently payable is not paid because of lack of means, that will normally suffice to prove that the company is unable to pay its debts. That will be so even if, on an assessment of all the assets and liabilities of the company, there is a surplus of assets over liabilities. That is trite law. It is equally trite to observe that the fact that a company can meet all its presently payable debts is not necessarily the end of the matter, because para (d) requires account to be taken of contingent and prospective liabilities. Take the simple, if extreme, case of a company whose liabilities consist of an obligation to repay a loan of 100,000 one year hence, and whose only assets are worth 10,000. It is obvious that, taking into account its future liabilities, such a company does not have the present capacity to pay its debts and as such it is unable to pay its debts. In Nicholls LJ then referred to Re European Life Assurance Society LR 9 Eq 122, including the passage quoted at para 28 above, and commented (p 248): the judgment of James V C in In my view the exercise described by James V C is the exercise required to be done under section 223 (now section 518 of the 1985 Act). He also referred to the decisions of Slade J in In Re Capital Annuities Ltd [1979] 1 WLR 170 and Nourse J in In Re A Company [1986] BCLC 261 as consistent with the views he had expressed. In my view these authorities go quite a long way to establishing that neither the notion of paying debts as they fall due, nor the notion of balance sheet insolvency, was unfamiliar before the enactment of the Insolvency Act 1985. But petitions by contingent or prospective creditors have been rare even after the repeal in 1986 of the standard requirement for such a creditor to provide security for costs. One reason for that is no doubt the difficulty of quantifying contingent and prospective liabilities to the satisfaction of the court. Another may be the fact that well advised commercial lenders will insist on contractual conditions under which deferred liabilities are accelerated in th e event of the borrower getting into financial difficulties. The far reaching reforms effected by the Insolvency Acts of 1985 and 1986, together with related subordinate legislation, were influenced by the report of the Cork Committee, published in 1982. One of its recommendations (para 535) was that the sole ground upon which the court may make an insolvency order in respect of a debtor, whether individual or corporate, will be that the debtor is unable to pay his or its debts. The Committee proposed three cases in which the debtor would be deemed to be insolvent and unable to pay his or its debts. The first two corresponded to the cases in section 123(1)(a) to (d) of the 1986 Act. The third case was: (c) Where the applicant is a contingent or prospective creditor to whom the debtor is or may become indebted in a sum of not less than the prescribed amount, being a debt not yet presently due and payable, and it is proved to the satisfaction of the court that the ultimate repayment of the debt is in jeopardy because the debtors liabilities, including contingent and prospective liabilities, exceed the debtors assets. This proposal limited the balance sheet insolvency test to applications by contingent or prospective creditors whereas the Byblos Bank case suggested that it was also relevant to the payment of debts as they fall due. That point was noted by Briggs J in his perceptive judgment In Re Cheyne Finance plc (No 2) [2008] Bus LR 1562. He referred at paras 42 43 to similar language (as they become due) used in Australian companies legislation, which until 1992 had a single test based on an inability to pay debts as they become due a phrase which looks to the future, as Griffith CJ said in Bank of Australasia v Hall (1907) 4 CLR 1514, 1527. There is a good deal of later Australian authority, mentioned in the judgment of Briggs J, to the same effect. In Re Cheyne Finance Plc (No 2) was concerned with a security trust deed which (in contrast to Condition 9(a)(iii) in the present appeal) incorporated into its rms of section 123(1), but not section definition of insolvency event the te 123(2). It was therefore necessary to was consider how far section 123(1)(e) concerned, not only with debts that were immediately payable, but also with those that would be payable in the future. Briggs J decided, rightly in my view, that that is what section 123(1)(e) requires (para 56): In my judgment, the effect of the alterations to the insolvency test made in 1985 and now found in section 123 of the 1986 Act was to replace in the commercial solvency test now in section 123(1)(e), one futurity requirement, name ontingent and prospective liabilities, with another more flexible and fact sensitive requirement encapsulated in the new phrase as they fall due. ly to include c Briggs J considered (para 35), again rightly in my view, that the Byblos Bank case was a case about ability to pay debts as they became due, but that the Court of Appeal recognised that balance sheet insolvency is not irrelevant to that issue. The practical effect of section 123 There is no doubt that, as a matter of form, the statutory test for a company being unable to pay its debts is materially different (as the Chancellor and the Court of Appeal observed) from the position under the Companies Act 1985. Section 123(1)(e) introduced the words as they fall due and section 123(2) has introduced a direct reference to a companys assets and liabilities. These two provisions, both labelled as deeming provisions (though neither is obviously of that character) stand side by side in section 123(1)(e) and section 123(2) with no indication of how they are to interact. It seems likely that part of the explanation lies in the history of the passage through Parliament of the Insolvency Bill in 1985, and the lengthy and interrupted process of review and consultation which had preceded it. This process began as long ago as October 1976 when the Secretary of State announced his intention of setting up what became the Review Committee chaired by Mr (later Sir) Kenneth rim report in October 1979 (after a change of Cork. It produced an inte government) and its final report in 1982. The whole protracted process is described by Professor Ian Fletcher QC in his Law of Insolvency 4th ed (2009), pp 16 22. He explains how there was no official reaction to the final report until a spate of financial scandals early in 1984: At relatively short notice the government White Paper, referred to above, was published in February 1984 together with an indication that legislation was imminent. In consequence, very little time was allowed for interested parties to submit comments before the drafting of the Insolvency Bill was embarked upon, and the Bill itself was introduced in the House of Lords on 10 December 1984. This regrettable mishandling of the period of preparation for the first major overhaul of insolvency law for over 100 years cannot but be lamented. The inadequate manner in which consultation was conducted, coupled with the near total lack of any form of public debate about the issues of policy and principle at the heart of any radical recasting of insolvency law, were an inauspicious prelude to what was to become a most contentious and confused episode of legislative history. Thereby, what ought to have been a largely non controversial, non Party Bill became the subject of highly dramatic proceedings before both Houses, and also in Committee, and damage was unquestionably inflicted upon the ultimate quality of a highly technical piece of legislation whose detailed provisions were but vaguely understood by all but a minority of those participating in its enactment, but whose social and econom ic importance was nonetheless immense. The Bills deficiencies, due to haste in tary preparation, together with the vicissitudes of the parliamen 18 Page process, resulted in a quite exceptional number of amendments being tabled to the Insolvency Bill, estimated to have approached 1,200 by the time of Royal Assent. A high proportion of these amendments were tabled by the Government itself, and many were adopted virtually without debate during the closing stages of proceedings. (para 1 034) Despite the difference of form, the provisions of section 123(1) and (2) should in my view be seen, as the Government spokesman in the House of Lords indicated, as making little significant change in the law. The changes in form served, in my view, to underline that the cash flow test is concerned, not simply with the petitioners own presently due debt, nor only with other presently due debt owed by the company, but also with debts falling due from time to time in the reasonably near future. What is the reasonably near future, for this purpose, will depend on all the circumstances, but especially on the nature of the companys business. That is consistent with Bond Jewellers, Byblos Bank and Cheyne Finance. The express reference to assets and liabilities is in my view a practical recognition that once the court has to move beyond the reasonably near future (the length of which depends, again, on all the circumstances) any attempt to apply a cash flow test will become completely speculative, and a comparison of present future liabilities (discounted for contingencies and assets with present and deferment) becomes the only sensible test. But it is still very far from an exact test, and the burden of proof must be on the party which asserts balance sheet insolvency. The omission from Condition 9(a)(iii) of the reference to proof to the satisfaction of the court cannot alter that. Whether or not the test of balance sheet insolvency is satisfied must depend on the available evidence as to the circ umstances of the particular case. The circumstances of Eurosails business, so far as it can be said to have a business at all, are quite unlike those of a compan trading activities. y engaged in normal There are no decisions to be made about choice of suppliers, stock levels, pricing policy, the raising of new capital, or other matters such as would constantly engage the attention of a trading companys board of directors. Instead Eurosail is (in Mr Mosss phrase) in a closed system with some resemblance to a life office which is no longer accepting new business. The only important management decision that could possibly be made would be to attempt to arrange new hedging cover in place of that which was lost when Lehman Brothers collapsed. To that extent Eurosails present assets should be a better guide to its ability to meet its long term liabilities than would be the case with a company actively engaged in trading. But against that, the three imponderable factors identified in para 9 above c urrency movements, interest rates and the United Kingdom economy and housing market are and always have been outside its control. Over the period of more than 30 years until the final redemption date in 2045, they are a matter of speculation rather than calculation and prediction on any scientific basis. At first instance the Chancellor started with three propositions derived from the case law (paras 29 to 32): that the assets to be valued are the present assets of the company; that contingent and prospective liabilities are not to be taken at their full face value; and that: Taking account of must be recognised in the context of the overall question posed by the subsection, namely whether the company is to be deemed to be insolvent because the amount of its liabilities exceeds the value of its assets. This will involve consideration of the relevant facts of the case, including when the prospective liability falls due, whether it is payable in sterling or some other currency, what assets will be available to meet it and what if any provision is made for the allocation of losses in relation to those assets. (para 32) He then set out four reasons (paras 34 to 37) for concluding (para 38) that the value of Eurosails assets exceeded its liabilities, having taken account of its contingent and prospective liabilities to such extent as appears to be necessary at this stage. In the Court of Appeal Lord Neuberger MR did not disagree with anything in the Chancellors judgment so far as it related to statutory construction. He did however go further in his detailed discussion of section 123(2). He observed (para 44): In practical terms, it would be rather extraordinary if section 123(2) was satisfied every time a companys liabilities exceeded the value of its assets. Many companies which are solvent and successful, and many companies early on in their lives, would be deemed unable to pay their debts if this was the meaning of section 123(2). Indeed, the issuer is a good example of this: its assets only just exceeded its liabilities when it was formed, and it was more than possible that, even if things went well, it would fall from time to time within the ambit of section 123(2) if the appellants are right as to the meaning of that provision. Lord Neuberger MR developed this at paras 47 to 49 of his judgment: 47. More generally, I find it hard to discern any conceivable policy reason why a company should be at risk of being wound up simply because the aggregate value (however calculated) of its liabilities exceeds that of its assets. Many companies in that position are successful and creditworthy, and cannot in any way be characterised as unable to pay [their] debts. Such a mechanistic, even artificial, reason for permitting a creditor to present a petition to wind up a company could, in my view, only be justified if the words of section 123(2) compelled that conclusion, and in my opinion they do not. 48. In my view, the purpose of section 123(2) has been accurately characterised by Professor Sir Roy Goode in Principles of Corporate Insolvency Law, 3rd ed (2005). Having referred to section 123(1)(e) as being the cash flow test and to section 123(2) as being the balance sheet test, he said this, at para 4 06: the only relevant test [for If the cash flow test were insolvency] then current and short term creditors would in effect be paid at the expense of creditors to whom liabilities were incurred after the company had reached the point of no return because of an incurable deficiency in its assets. 49. In my judgment, both the purpose and the applicable test of section 123(2) are accurately encapsulated in that brief passage. Toulson LJ agreed with Lord Neuberger MR but expressed himself in a more guarded way. He agreed that Professor Sir Roy Goode had rightly discerned the underlying policy (para 115) but added (para 119) that Professor Goodes reference to a company having reached the point of no return because of an incurable deficiency in its assets illuminates the purpose of the subsection but does not purport to be a paraphrase of it. He continued: Essentially, section 123(2) requires the court to make a judgment whether it has been established that, looking at the companys assets its prospective and contingent and making proper allowance for liabilities, it cannot reasonably be expected to be able to meet those liabilities. If so, it will be deemed insolvent although it is currently able to pay its debts as they fall due. The more distant the liabilities, the harder this will be to establish. I agree with what Toulson LJ said here, and with great respect to Lord Neuberger MR I consider that the point of no return should not pass into common usage as a paraphrase of the effect of section 123(2). But in the case of a companys liabilities that can as matters now stand be deferred for over 30 years, and where the company is (without any permanent increase in its borrowings) paying its debts as they fall due, the court should proceed with the greatest caution in deciding that the company is in a state of balance sheet insolvency under section 123(2). Reasoning in the courts below Sir Andrew Morritt C, having set out some general propositions as to the effect of section 123 (1)(e) and (2) (in paras 29 to 32 of his judgment, summarized above), rejected the A3 Noteholders submission that Eurosail was plainly insolvent for the purposes of section 123(2) as applied by Condition 9(a)(iii). He relied on four points, set out in paras 34 to 37 of his judgment. First, Eurosails claims in the insolvencies of LBHI and LBSF, though not admitted, could not be ignored. The secondary market indicated that the claim was worth 35% to 37% of US$221m (that is, a value of the order of 60m). Second, a large part of the total deficiency that was claimed to exist was due to conversion into sterling at the prevailing spot rate of liabilities not due for payment until 2045. Third, the future liabilities were fully funded in the limited sense that deficiencies resulting from mortgage defaults reduced Eurosails liability to the Noteholders through the operation of the Principal Deficiency Ledger. Fourth, the Chancellor was able to infer that a calculation of the then present values of assets and liabilities would not show a deficiency, since Eurosail was well able to pay its debts as they fell due, there was no deficiency on the Principal Deficiency Ledger, and projected redemptions of each class of A Notes were in advance of the maturity dates. In the Court of Appeal counsel appearing for the A2 Noteholders did not feel able to give complete support to the Chancellors second point, and Lord Neuberger MR accepted (para 67) the submission of counsel for the appellants: As Mr Sheldon [then appearing for the A3 Noteholders] said, one has to value a future or contingent liability in a foreign currency at the present exchange rate. By definition, that is the present sterling market value of the liability. I would also respectfully question the Chancellors third point. The Chancellor had earlier in his judgment, at para 13, referred to clause 8 of the Cash/Bond Administration Agreement, which provides for the maintenance of Principal Deficiency Ledgers. That seems to be the basis of his point about liabilities being self cancelling. But clause 8 seems to be concerned with no more than an accountancy exercise, not with a permanent extinction of liabilities. It operates to nal redemption date, if circumstances defer liabilities for principal until the fi require, and provided that an Enforcement Notice is not given in the meantime. But Condition 2(h) provides for Eurosail to be liable on a full recourse basis post enforcement, as already noted (para 18 above). Lord Neuberger MR did not accept that a forecast deficiency based on then current exchange rates could be dismissed as entirely speculative. He started (para 63) from Eurosails audited accounts for the year ending 30 November 2009, which showed a net liability of 74.557m. He noted (paras 63 to 74) that this figure required two substantial amendments (one for the Lehman Brothers claim, and the other for the full recourse factor) which, ironically and coincidentally, virtually cancel each other out (para 69). So his final discussion and conclusion (paras 75 to 83) starts with an assumed deficiency of the order of 75m. Against that Lord Neuberger MR set three factors. The first was that a deficiency of 75m, with an aggregate principal sum of just over 420m outstanding on the mortgages, was less than 17% of the assets. Secondly, the deficit was largely based on the assumption that exchange rates would remain constant (para 76): Of course, they are as likely to move in an adverse direction as they are to move in a favourable direction, but the volatility of those rates tell against the appellants given that they have to establish that the issuer has reached the point of no return. Thirdly, the court was looking a long way ahead (para 78): Not only do all the unredeemed notes have a final redemption date in 2045, but it appears from the evidence that the weighted average term of the remaining mortgages is in the region of 18 years, and the rate of early redemption has slowed significantly and is likely, according to expert assessment, to remain low for the time being. Lord Neuberger MR accepted that there was a real possibility that, if no Enforcement Notice was served, events might turn out to the disadvantage of the A3 Noteholders (para 79): However, as mentioned, a future or contingent creditor of a company can very often show that he would be better off if the company were wound up rather than being permitted to carry on business. In a commercially sensible legal system that cannot of itself justify the creditor seeking to wind up the company. Toulson and Wilson LJJ agreed with this reasoning. Toulson LJ emphasised the importance of the liabilities being distant in time (para 119, quoted in para 42 above). The appeal was therefore dismissed, as was the cross appeal. Conclusions The crucial issue, to my mind, is how far the Court of Appeals conclusion depended on the point of no return test. For reasons already mentioned, I consider that that is not the correct test, if and in so far as it goes beyond the need for a petitioner to satisfy the court, on the balance of probabilities, that a company has insufficient assets to be able to meet all its liabilities, including prospective and contingent liabilities. If it means no more than that, it is unhelpful, except as illuminating (as Toulson LJ put it) the purpose of section 123(2). In my view the Court of Appeal would have reached the same conclusion without reference to any point of no return test; and I would myself reach the same conclusion. Eurosails ability or inability to pay all its debts, present or future, may not be finally determined until much closer to 2045, that is more than 30 years from now. The complex documentation under which the loan notes were issued contains several mechanisms (identified in para 22(1) to (4) above, the PECO being disregarded for present purposes) for ensuring that liabilities in respect of principal are, if necessary, deferred until the final redemption date, unless the post enforcement regime comes into operation. The movements of currencies and interest rates in the mean time, if not entirely speculative, are incapable of prediction with any confidence. The court cannot be satisfied that there will eventually be a deficiency. I would therefore dismiss the appeal. I would also dismiss the cross appeal, for the same reasons as were given by the Chancellor and the Court of Appeal. It is onsider Mr Dickers arguments based on suppose not necessary to c d inconsistencies and commercial realities, except to say that they would have encountered serious difficulties in the light of this courts decision in Enviroco Ltd v Farstad Supply A/S [2011] UKSC 16, [2011] 1 WLR 921: see the judgment of Lord Collins of Mapesbury, with which the other members of the court agreed, at paras 51 and 52. The loan notes documentation did indeed contain some provisions (identified in paras 128 to 134 of Eurosails case) which are inconsistent with the post enforcement regime being triggered by a temporary deficiency of assets. But the court might well have taken the view, on documents of such complexity, that the draftsman had simply failed to grasp all its many and various implications, and that it was not for the court to rewrite the documents for the parties. LORD HOPE I would dismiss the appeal for the reasons given by Lord Walker. I would also dismiss the cross appeal, which concerns the effect of the PECO on the application of section 123(2) of the 1986 Act as in corporated into Condition 9(a)(iii). The question which it raises no longer needs to be answered as th e Noteholders appeal on the question whether Eurosail (the Issuer) was unable to pay its debts was not successful. But Sir Andrew Morritt C [2011] 1 WLR 122 gave his view on it in paras 39 44 of his judgment, and so too did Lord Neuberger MR in the Court of Appeal [2011] 1 WLR 2524 in paras 84 100. A PECO is widely used in securitisation transactions of the kind that was entered into in this case, and we have been told that the question is of some importance to the securitisation market more generally. So it is appropriate that we should give our reasons for agreeing with the Chancellor and the Court of Appeal that it has no effect on the way the liability of the Issuer to the Noteholders for the purposes of the default provision in Condition 9(a)(iii) is to be calculated. The Trustee entered into a PECO Agreement on behalf of the Noteholders on 16 July 2007, which is the same date as that on which the Notes were issued. By Clause 3.1 it granted an option to a company called Eurosail Options Ltd (referred to in the Agreement as OptionCo): to acquire all (but not some only) of the Notes (plus accrued interest thereon) in the event that the Security for the Notes is enforced and the Trustee, after the payment of the proceeds of such enforcement, determines that the proceeds of such enforcement are insufficient, after payment of all claims ranking in priority to or pari passu with the Notes pursuant to the Deed of Charge, to pay in full all principal and/or interest and any other amounts whatsoever due in respect of the Notes. The Trustee shall promptly after the Security is enforced and the proceeds of such enforcement are paid, make a determination of whether or not there is such an insufficiency. If the Trustee determines that there is such an insufficiency the Trustee shall forthwith give notice (the In sufficiency Notice) of such determination to OptionCo and the Issuer. Clause 3.1 has to be read together with Condition 5(j) (see para 19, above), which provides that each Noteholder will, on the exercise of the option conferred on OptionCo, sell to the company the whole of his holding of notes for the nominal consideration for which the PECO provides. It also has to be read together with the Event of Default described in Condition 9(a)(iii): see para 5, above. Under that provision a default occurs, among other things, in the event of the Issuer: being unable to pay its debts as and when they fall due or, within the meaning of section 123(1) or (2) (as if the words it is proved to the satisfaction of the court did not appear in section 123(2)) of the Insolvency Act 1986 (as that section may be amended from time to time), being deemed unable to pay its debts. The Prospectus at p 26 contains this explanation of the effect of these provisions, under the heading Considerations related to the Instruments, for prospective purchasers: Although the Instruments will be full recourse obligations of the Issuer, upon enforcement of the security for the Instruments, the Trustee will, in practice, have recourse only to the Loans and Collateral Security, and to any other assets of the Issuer then in existence as described in this document The purpose of a PECO is to achieve bankruptcy remoteness for the issuer. Its aim is to prevent the issuer from being susceptible to insolvent winding up proceedings by ensuring so far as possible that, if its assets prove to be insufficient the issuer will not instigate bankruptcy to meet its liabilities, a director of proceedings in respect of it. Bankruptcy remoteness is one of the criteria used by the rating agencies which issuers of notes seek to satisfy so that their instruments will achieve the highest possible credit rating. That criterion is satisfied in other jurisdictions by provisions which limit the rights of noteholders against the issuer to the value of the issuers assets. Until recent tax legislation altered the position, limited recourse provisions of that kind gave rise to UK stamp duty reserve tax at the rate of 1.5% of the amount subscribed for them. As the Chancellor explained in para 40, the PECO is designed to achieve the same result as limited recourse provisions, but without the adverse tax consequences. The Issuer accepts that, as a matter of contract, the liabilities were unlimited in recourse. But it maintains that the commercial reality was that the liabilities alleged to be the debts that the issuer was unable to pay to the Noteholder were liabilities which it would never have to meet. In the event that the assets of the Issuer were exhausted, any claim that the Noteholder had against the Issuer would be assigned to the option holder. That, it is said, would bring an end to the claim. So it would be wrong to treat the Issuer ion 123(2) as as falling within sect incorporated into Condition 9(a)(iii) on the ground that it was unable to pay its debts, as in practice it was never intended or expected that the liabilities would be paid except out of the underlying assets available to the Issuer. The soundness of this approach depends however on whether, in law, the the Issuer to the Noteholder. In answering this PECO affects the liability of question it is important to appreciate that the question is not whether the Issuer should actually be wound up on the grounds described in section 123(2), but whether its financial position is such that it falls within that subsection for the purposes of the default provision in C ondition 9(a)(iii). The answer to that question is to be found by examining the wording of the Condition in the context of the provisions of the transaction documents as a whole. Does the PECO in any way alter the conclusion that would otherwise be drawn that the Issuers assets were less than its liabilities and that it was unable to pay its debts? The Chancellor based his judgment that it did not on the wording of section 123(2), as amended for the purposes of Condition 9(a)(iii). He held that if, in the application of that subsection the court concluded that the value of the companys assets was less than the amount of its liabilities, taking into account its contingent and prospective liabilities, the PECO had no effect on those liabilities at all: para 43. As he put it, the liabilities of the Issuer remain the same, whether or not there is a PECO or, if there is, whether or not the call option has been exercised. Unless and until the option holder releases the Issuer from all further liability, which it is under no obligation to do, the liability of the Issuer is unaffected. Lord Neuberger reached the same conclusion, but for fuller reasons: see paras 92 97. He said that, reading the relevant provisions of the documents together, they established that the Issuers liability to the Noteholders was to be treated as a liability of full recourse at least until the security was enforced and, arguably, until the option was exercised and the transfer to the option holder was completed. There was the statement in the Prospectus mentioned in para 54, above. It suggested a two stage process, under which the Issuers liability was treated initially as full recourse and liability would become limited recourse only on enforcement of the security. There was the closing part of clause 6.7 of the Deed of Charge which, having restricted the ability of the Trustee to enforce the Noteholders rights on enforcement of the Security beyond the Issuers assets, provided that this shall not apply to and shall not limit the obligations of the Issuer to the [Noteholders] under the Instruments and this Deed. And there was the provision in Condition 2(h), which stated in terms that the Noteholders had full recourse to the Issuer in respect of payments due and that they were entitled to bring a claim under English law for the full amount of such payments. Finally Lord Neuberger referred to the wording of Condition 9(a)(iii) itself. It was hard to see why any reference should be made in that Condition to section 123(2) if the Noteholders rights against the Issuer were not to be treated as full recourse until the enforcement of the security. He also said that there was nothing commercially insensible in the conclusion that, for the purpose of Condition 9(a)(iii), the Noteholders rights against the Issuer were treated as being of full recourse, notwithstanding the PECO: para 100. The A3 Noteholders submit that the key operative provision is Clause 3.1 of the PECO itself. It makes it plain that it does not have the effect of limiting the liability of the Issuer in respect of the Notes to the value of the Issuers assets. Its reference to there being an insufficiency of assets after enforcement to meet whatever is due in respect of the Notes is a clear indication that it contemplates that the amount of the liabilities that the Notes have created must be capable of exceeding the value of the assets of the Issuer. Then there is the time at which the option is exercisable. It is not said to have any operative effect at all prior to enforcement of the security. So at all times prior to its exercise the Noteholders remain entitled to payment in accordance with the Conditions. And even when exercised all it does is provide a mechanism by which the right to be paid under the Notes is assigned to OptionCo. As the Issuer relies on commercial reality rather than legal form, the legal effect of the documents is not really in dispute. The common intention of the parties is said by the Issuer to be quite different. Its argument is that, as inclusion of a PECO rather than a contractual limited recourse provision was done solely for tax reasons, it was not intended or unders tood to alter the commercial nature, effect and operation of the asset backed securitisation. As a matter of contract the liabilities were unlimited in recourse. As a matter of commercial substance and in valent of a provision by which the rights of practice, they were the equi Noteholders were expressly limited. The Issuers case is that its future obligations to pay principal under the Notes should be taken into account only to the extent that its assets were sufficient to pay for them. As Mr Dicker QC for the Issuer put it at the end of his argument, legal fo rm should not triumph over commercial substance. distinguish the intended commercial effect of these provisions from their legal effect in this way. The exercise that Condition 9(a)(iii) predicates is the quantification of the amount of the Issuers assets and liabilities in order to determine whether there has been an Event of Default. The legal effect and the commerc ial effect of the PECO, on its true analysis, both point in the same direction. It has no effect, for the purpose of that quantification, on the amount of the Issuers liabilities. To limit those liabilities as the Issuer contends would contradict the parties clearly expressed commercial intention as found in the contractual documents. The fact that the economic result of the PECO may be the same as if the Noteholders right of recourse had been limited to the Issuers assets is beside the point. It can be expected to achieve bankruptcy remoteness as effectively. But it would not be in accordance with the true meaning of the documents to treat the two methods as if they had the same effect in law. Page I do not think that it is possible to when the provisions are open to different interpretations. The court should adopt the more, rather than the less, commercial construction: Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900. But, for the reasons given by the Chancellor and Lord Neuberger MR, the meaning to be given to the language that the parties used in this case is not open to doubt. The suggestion that to give effect to that meaning is to surrender to legal form over commercial substance amounts, in effect, to an invitation to depart from the settled role of commercial good sense. Its role is to find out what the par ties meant when they entered into the arrangement, not to replace it with something which is not to be found in the language of the documents at all. The ultimate aim in construing provisions of the kind that are in issue in this case, as it is when construing any contract, is to determine what the parties meant by the language that they have used. Commercial good sense has a role to play |
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co operation in respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996 (the 1996 Convention), came into force in the United Kingdom on 1 November 2012. This is the first case about that Convention to reach this Court. It concerns the scope of the jurisdiction conferred by article 11 in all cases of urgency upon the Contracting State where a child is present but not habitually resident. The facts The child, whom I shall call Saleem, was born in England in January 2007. His parents are both Moroccan citizens, although they also hold British citizenship. The father lived in England from 1996 until 2009. He married the mother in Morocco in 2005 and the mother came to join him here. From 2009 to 2011, the family lived in Saudi Arabia, where the father held an academic post. Then in 2011 they moved to Morocco, so that the father could take up the academic post which he now holds. However, from August 2011 there were problems in their marriage, and in December 2011, the father instituted proceedings for divorce. In the spring of 2012, the mother moved with the child to her parents home in another city, some 50 miles from where the family home is. The local Family Court made an order divorcing the parents on 12 July 2012. The mother was granted residential custody of the child. The mother was also ordered to allow the father to visit his child on Sundays and holidays, from 9.00 am until 5.00 pm, under the condition that the child must spend the night at his mothers residence. The order also provided for the father to pay maintenance for the child. It did not say anything about whether the mother could, or could not, take the child out of the country. Mother and child lived with the mothers parents for the rest of 2012, but in January 2013, the mother came to England, leaving the child in the care of her parents. The mothers case is that she met her current partner, a Moroccan living in England, when he visited Morocco in 2012. They went through an Islamic ceremony of marriage in January 2013, after the mothers arrival in England, and they have lived here together since then. They have a child together, born in November 2014. The fathers case is that he and the child were in regular and frequent contact while the mother was away and in particular that the child spent the whole of the 2013 summer holiday, from 1 July until he went back to school in September, in his fathers care (this is borne out by what the child told the Cafcass officer). However, on 14 September 2013 the mother removed the child from her parents home and brought him to England. He has lived here with her and her new partner ever since. He has had some contact with his father by phone and skype but no face to face contact since he left Morocco. The father suffered from polio as a child and has problems with mobility. Regular and frequent international travel is difficult for him and he also lacks the means to afford it. On 23 September 2013, the father applied to the Family Court in the district where the child had been living to revoke the order of 12 July 2012, granting the mother residential custody and child maintenance, and to grant him the residential custody of the child. That application was refused on 16 January 2014. The mother had asked the court to reject the application due to lack of evidence on the nature of [her] stay abroad. The court concluded that Since the applicant could not provide any evidence whether the respondents departure with her child to England was intended to be a casual and temporary or a permanent stay, and since he has no females available to look after his child, his request does not meet the legal and religious conditions required to allow him to look after his own child pursuant to article 400 of the [Family] Code. These proceedings On 14 March 2014, the father brought proceedings in the High Court, seeking an order that the child be made a ward of court and directions for his summary return to Morocco. The final hearing of this application did not take place until 10 October 2014. Some of this delay was occasioned by the need to locate the mother and child, some by enabling her to seek legal aid and legal representation, some by attempts to obtain clarification of Moroccan law through the Moroccan Central Authority, and, that having been unsuccessful, by the parties jointly instructing an expert in Moroccan law. The mother had also to be ordered to disclose details of her relationship with her new husband and her pregnancy. In the meantime, Saleem had been interviewed by a Cafcass officer, who filed her report on 15 August 2014. Although Morocco has acceded to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Convention), that accession has not yet been accepted by the European Union, and thus by the United Kingdom. The case therefore proceeded before Roderic Wood J as an application under the inherent jurisdiction of the High Court: [2014] EWHC 3588 (Fam). He referred (at para 1) to the proceedings also having been brought under the 1996 Convention, and mentions that his attention had been drawn to articles 5, 7, 19 and 22 (but not 11) of that Convention. However, in his section headed The law, he refers only to article 22, which deals with applicable law, and not with jurisdiction. He dealt with the case as a straightforward application of the principles applicable to such non Hague applications for summary return, as contained in the decision of the House of Lords in In re J (A Child)(Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80. The judge dealt with the matter on the basis of the written evidence and submissions only. The parties had agreed that it was not necessary to call the Cafcass officer to give oral evidence. The judge refused applications by the mother for her to give oral evidence and for supplementary questions to be asked of the expert in Moroccan law. The judge found as a fact that the father had not consented to the mothers removal of the child from Morocco. Her own version was that she had told the father of her plans but he just swore at me and that she had been saying to the father for quite some time that I wanted to return to the United Kingdom with S[aleem]. I do not know whether he believed me or not when I used to say this. Her own evidence, therefore, fell a very long way short of consent. Saleem himself had told the Cafcass officer that he did not know where they were going on 14 September 2013 until they got to the airport. This suggested strongly that she knew that Saleem would tell his father if he knew beforehand and that was a thing she wished to avoid (para 16). The father not having given his consent to the removal, the judge also found that it was wrongful (para 37). He also found that mother and father and child were habitually resident in Morocco before the mother wrongfully removed the child (para 37). In a further reference to the 1996 Convention, articles 5 and 6, he commented that it is clear that the Moroccan court had, and continues to have, jurisdiction in this matter based on the continuing habitual residence of S[aleem] in that country, which was not terminated by his mothers wrongful removal of him (para 45). No argument was addressed to him that the effect of the 1996 Convention was that the English court had no jurisdiction at all in the matter. He considered, therefore, whether under the established principles this was an appropriate case for summary return and concluded that it was. Saleem had told the Cafcass officer that he liked his maternal grandparents and his father. Asked what was good about Morocco he spoke of swimming and his holidays with his father (he shivers at an English winter). He had nothing bad to say about his life in Morocco. But he was happy about coming to England because he wanted to live with his mother (para 22). He liked his school in England. He would be sad if the judge ordered his return to Morocco because he wants to stay with his mother. But he did not seem to have contemplated the possibility that his mother might return to Morocco with him. If the judge decided that he should stay here, he would like to go to Morocco and see his father in the school holidays, If the judge decided he should go to Morocco, he would like to come back to the United Kingdom to see his mother in the school holidays (para 23). The Cafcass officers conclusions were that Saleem is a well presented, intelligent and polite child with a good command of English. He was a resilient child who did not appear to be badly caught up in the conflict between his parents. He had nothing bad to say about his father or about life in Morocco. He was clear about his reasons for wanting to remain in the United Kingdom, which was to be with the mother, but showed no outward sign of distress at the mention of a possible return to Morocco (para 24). The questions asked of the expert in Moroccan law were directed to two subjects: first, the general principles of Moroccan law concerning the allocation of parental responsibility, custody, access and relocation; and second, whether there was jurisdiction to allow one parent to move to another country and if so how it was exercised. The expert answered by reference to the Moroccan Family Code of 2004, of which we have an unofficial translation. Custody of children during the marriage is the responsibility of both parents (article 164). When the marriage is terminated by divorce, custody goes first to the mother, then to the father, then to the maternal grandmother (article 171). It would appear that the general rule is that the mother loses custody on remarriage, as long as the father claims it within a year of finding out about it (article 176). But her remarriage does not cause her to lose custody if the child is aged seven or less, or will suffer harm from being separated from her, or has a health condition or handicap which will render custody of the non mother extremely burdensome, or if the mothers new husband or the mother herself is the childs legal representative (not so here, as the father is the childs legal representative) (article 175). The Code does not mention anywhere the relocation of the child to another country. It does state that the mother does not lose custody if she moves permanently to another town in Morocco (article 178). The lawyers opinion was that If such Lawsuit to relocate the child to another country is brought, the Family Court in giving its decision may consider the childs best interests and the ability of the non custodian parent to visit the child. The expert was not asked whether the effect of the order of 12 July 2012 was to prohibit the mother from removing the child permanently from Morocco without consent. Roderic Wood J held that the terms of the order make it abundantly clear that the intention was that the mother and children [sic] should live in Morocco, for if it permitted the mother to move countries, the provision for the fathers contact would be otiose (para 10). Nor was the expert asked whether the Moroccan court had power to make an order compelling the mother to return the child from England to Morocco. At that stage in the proceedings, no one had focussed their mind on the precise nature and extent of the jurisdiction of the English court. Roderic Wood J concluded that this was an appropriate case in which to deal with matters summarily (para 33). Overall, he had no hesitation that it is in S[aleem]s best interests to return to Morocco where he was habitually resident for the courts of that country to adjudicate, if required to do so, on welfare issues relating to [him] (para 46). He ordered the mother to return the child, or cause the return of the child, to Morocco no later than 4.00 pm on 11 January 2015. The delay was permitted because the mother was about to give birth. The mother sought permission to appeal on a number of grounds, but again these did not question the jurisdiction of the English court. She was refused permission to appeal against the finding that Saleem was habitually resident in Morocco before his removal to this country and that his removal had been wrongful. When the father applied for permission to appeal to this Court, she applied to cross appeal against the finding of wrongful removal. She was refused permission so to do. The mother cannot now challenge the findings that the child was habitually resident in Morocco before his removal to this country and that his removal was wrongful. The mother was, however, given permission to appeal to the Court of Appeal on three grounds: (i) that the judge had erred in his consideration of the expert evidence, by failing to allow oral evidence and cross examination, and by drawing the wrong conclusions from it; (ii) that in considering the childs welfare and the Cafcass report, (a) he failed to carry out a sufficiently deep, thorough and realistic analysis of the childs welfare needs and wishes, (b) was unclear as to the approach adopted, and (c) erred in his evaluation of the welfare considerations; and (iii) that he erred in failing to consider article 9 of the 1996 Convention. However, when giving judgment in the Court of Appeal ([2015] EWCA Civ 329; [2015] 3 WLR 747), Black LJ stated that When I gave permission, like the parties I was thinking in terms of whether the well known principles in In re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80 would need modification in the light of the coming into force of the 1996 Hague Convention (para 76). It had, however, become clear to her that the impact of the 1996 Hague Convention is far more radical (para 77). The focus of the Court of Appeals attention was entirely upon the 1996 Convention. It will be necessary to return to the precise reasoning later. In summary, Black LJ explained that article 11(1) imports three conditions before a court can exercise jurisdiction: (i) The case is one of urgency, (ii) The child (or, where relevant, property belonging to the child) is present in the contracting state of the court in question; (iii) The steps the court is going to take are necessary measures of protection (para 68). Measures of protection has a wider meaning than might be thought and was capable of including a return order (para 70). There may be cases in which a return order is urgent and necessary (para 71), but this was not one of them (para 72). Six months had passed before the father took action here and over a year before the judges decision. A speedy application to the Moroccan court was possible and there was no explanation for why the father had not applied for a return order rather than a change of residence. Accordingly the judge did not have jurisdiction under article 11 (para 73) and there was no other basis upon which he could assume jurisdiction (para 74). Hence the appeal was allowed and the fathers application dismissed. Black LJ pointed out that the consequence may seem rather strange. If the father were now to make a fresh application (presumably under the inherent jurisdiction or the Children Act 1989), it was possible that the childs habitual residence had changed, and the Moroccan jurisdiction was no longer preserved by article 7 of the 1996 Convention. The English court would therefore have full jurisdiction under article 5 (para 83). Others have pointed out that the consequence of the interpretation of article 11 adopted by the Court of Appeal is also rather strange. A procedure which had been adopted for many years by the English court in order to effect the summary return of an abducted child from this country to his home country had apparently been precluded by a Convention, which was designed to improve the protection of children in international situations. The 1996 Convention The Preamble to the 1996 Convention states that the State parties, in agreeing its provisions, had six objectives: Considering the need to improve the protection of children in international situations; Wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children; Recalling the importance of international co operation for the protection of children; Confirming that the best interests of the child are to be a primary consideration; Noting that the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors is in need of revision; Desiring to establish common provisions to this effect, taking into account the United Nations Convention on the Rights of the Child of 20 November 1989. Article 1 sets out the objects of the Convention, which include (a) to determine the state whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child. Article 3 provides, so far as relevant: The measures [of protection] referred to in article 1 may deal in particular with (a) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation; (b) rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the childs place of residence, as well as rights of access including the right to take the child for a limited period of time to a place other than the childs habitual residence; (c) guardianship, curatorship and analogous institutions; (d) the designation and functions of any person or body having charge of the childs person or property, representing or assisting the child; (e) the placement of a child in a foster family or in institutional care, (f) the supervision by a public authority of the care of a child by any person having charge of the child; This is a non exhaustive list and it is apparent that measures of protection goes far wider than the public law measures of child care and protection to which an English lawyer might otherwise think that they referred (although those are also included). The exclusions from the Convention in article 4 include (a) the establishment or contesting of a parent child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the names and forenames of the child; None is relevant in this case, but the exclusions do indicate that the focus of the Convention is on the care and upbringing of the child (or the protection of his property). In my view the Court of Appeal was entirely right to consider that an order for the return of the child to the country of his or her habitual residence is a measure of protection for the purpose of the Convention, as indeed would be an order prohibiting the child from being taken out of that country. The primary rule of jurisdiction is contained in article 5: (1) The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the childs person or property. (2) Subject to article 7, in case of a change of the childs habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction. Article 7 deals with jurisdiction after wrongful removal or retention: (1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other state for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment. (2) The removal or retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, ether jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. (3) So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can only take such urgent measures under article 11 as are necessary for the protection of the person or property of the child. Article 11 supplies an additional jurisdiction in limited circumstances: (1) In all cases of urgency, the authorities of any contracting state in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection. (2) The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under articles 5 to 10 have taken the measures required by the situation. (3) The measures taken under paragraph 1 with regard to a child who is habitually resident in a non Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question. There are several things to note about this provision. First, it bears a striking resemblance to article 20 of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, otherwise known as the Brussels II revised Regulation (the Regulation). Article 20, however, merely allows one member state to take provisional, including protective measures in respect of persons or assets in that State as may be available under the law of that member state, even if, under the Regulation, the court of another member state has jurisdiction. Article 11, in contrast, confers an additional jurisdiction upon the State where the child or the property is. An order made under article 20 is not enforceable in another member state: Purrucker v Valles Perez (No 1) (Case C 256/09) [2011] Fam 254. In contrast, an order made under article 11 is enforceable in the other Contracting States in accordance with Chapter IV of the 1996 Convention. The order can thus have extra territorial effect, although it will lapse in accordance with article 11(2) once the authorities in the State of primary jurisdiction have taken the measures required by the situation. Secondly, this means that the assistance to be gained from decisions of the Court of Justice of the European Union in relation to article 20 is limited. In particular, in the Court of Appeal, at paras 67 and 72, Black LJ placed some emphasis upon the case of Detiek v Sgueglia (Case C 403/09 PPU), [2010] Fam 104, at para 42: Since article 20(1) of Regulation No 2201/2003 authorises a court which does not have jurisdiction as to the substance to take, exceptionally, a provisional measure concerning parental responsibility, it must be considered that the concept of urgency in that provision relates both to the situation of the child and to the impossibility in practice of bringing the application concerning parental responsibility before the court with jurisdiction as to the substance. Since it was not obviously impossible for the father in this case to take his case to the Moroccan court, she held that this was not a case or urgency within the meaning of article 11. However, the interpretation of a word in the context of a provision giving a purely ancillary power is not necessarily transferable into the context of a provision giving a substantive, albeit additional, jurisdiction. In particular, if the child needs protection now, it is not obvious why the courts of the country where the child is should refrain from granting that protection while inquiries are made about the possibility of bringing proceedings in the home country. If the courts of the home country do take action, the measures they take will trump those taken in the presence country. But if no action is taken, the measures taken in the presence country will continue to operate throughout the Convention space. That is a very different situation from that in Detiek, where the Italian court which had jurisdiction under the Regulation had made a custody order in favour of the father and the mother had taken the child to Slovenia, where she persuaded the Slovenian court to make a completely different order. Thirdly, it must be borne in mind that article 11 confers jurisdiction on the presence country in all situations to which its terms apply. It is not limited to cases of wrongful removal or retention covered by article 7. Article 7 is concerned with the very specific situation where jurisdiction is retained in the country of former habitual residence because the child has been wrongfully taken or kept away from that country. But a child may be habitually resident in one country but present in another in a whole host of situations which do not involve an unlawful removal or retention. Take, for example, a family who come here on holiday or for short term study or employment and an incident of serious domestic violence takes place between the parents, as a result of which the parents separate. It may very well be necessary to decide where the children shall live while they remain here. The local authority may well consider that unless the children are safeguarded in the care of the non violent parent it will be necessary to take steps to remove them temporarily from the family for their own safety. It cannot be the case that the courts of the presence country are prohibited from taking those steps because it has not been shown to be impossible for the courts of the home country to do so. Fourthly, where there has been a wrongful removal or retention, article 11 has proved very helpful in securing a soft landing for children whose return to their home country is ordered. As Dr Hans van Loon observes, in a study prepared for the European Parliament, The Brussels IIa Regulations: towards a review?, at paragraph 3.1.3, the Regulation does not contain the equivalent of articles 7(3) and 11 of the 1996 Convention: Under the 1996 Convention, where the court of refuge orders return subject to certain undertakings by the parties or to protective measures as are necessary for the protection of the person or property of the child, these orders will be urgent measures under its article 11. They must be recognised and enforced under Chapter IV of the Convention, and remain effective until the court of origin has taken the measures required by the situation. As practice under the 1980 Convention has shown, without this enforcement obligation, undertakings and protective measures will often not be respected and remain ineffective. This has given rise to the need to obtain mirror or safe harbour orders in the state of origin, but these may not always be available, or, again, not be effective. Articles 7(3) and 11 1996 Convention, therefore, strongly reinforce the return mechanism of the 1980 Convention. Dr van Loon noted the English case of B v B [2014] EWHC 1804 (Fam), where Mostyn J used the 1996 Convention for just this purpose, when ordering the return of a child to Lithuania pursuant to the 1980 Convention, so as to ensure that there was no grave risk of harm within the meaning of article 13(1)(b) of that Convention. Dr van Loons understanding of the 1996 Convention is of particular relevance, as he was Secretary General of the Hague Conference on Private International Law from 1996 to 2013. It would obviously place in jeopardy this valuable aspect of the 1996 Convention, in assisting the objectives of the 1980 Convention, if the courts in the presence country could not invoke the article 11 jurisdiction without first assuring themselves that it was impossible for the courts of the home jurisdiction to take action. Indeed, Dr van Loon recommends that the Regulation be amended so as to delete article 20 and insert the equivalent of article 11. If there is no pre condition to jurisdiction under article 11 that it be impossible or impracticable for the courts of the country of habitual residence to exercise jurisdiction, then how is it to be interpreted? It requires, as Black LJ pointed out, (i) a case of urgency, (ii) the presence of the child or his or her property, and (iii) that measures of protection be necessary. In my view that demands a holistic approach. It may be helpful for the court to ask itself three questions. Is the child here? Are measures of protection necessary? Are they urgent? But that is not to suggest that these questions must always be asked in that order. The article should be applied according to its terms. It is obviously consistent with the overall purposes of the Convention that measures of protection which the child needs now should not be delayed while the jurisdiction of the country of habitual residence is invoked. On the other hand, the article 11 jurisdiction should not be used so as to interfere in issues that are more properly dealt with in the home country. It is a secondary, and not the primary, jurisdiction. Thus it is one thing to use the article 11 jurisdiction in support of the home country, for example, by facilitating a return there after a wrongful removal. It is quite another thing to set up the article 11 jurisdiction in opposition to that of the home country (as happened in Detiek). Clearly it was not intended for that purpose. We have received very helpful written submissions from three interveners: Reunite International Child Abduction Centre, the AIRE Centre, and the International Centre for Family Law, Policy and Practice. All are broadly supportive of the above approach. Reunite argues that, in cases of wrongful removal or retention, no left behind parent should be shut out from invoking the jurisdiction under article 11. It is then a question for the court whether the circumstances are such that a return order is necessary. At this stage, questions of long delay, or possible objections to return, analogous to those in article 13 of the 1980 Convention, may become relevant. In this way, the position under the 1996 Convention would broadly mirror that under the 1980 Convention in child abduction cases. On the other hand, this view of the matter does not emerge either from the Explanatory Report on the 1996 Convention by Paul Lagarde (HCCH Publications 1998) or from the Practical Handbook on the Operation of the 1996 Hague Child Protection Convention, the most recent edition of which is dated 2014. The Lagarde Report points out, at para 68, that the Convention does not define the notion of urgency, but as it is a derogation from the normal rule it ought to be construed rather strictly. It might be present where the situation, if remedial action were only sought through the normal channels of articles 5 to 10, might bring about irreparable harm for the child. However, he later puts it more broadly, when explaining the justification for this concurrent jurisdiction. If this jurisdiction had not been provided, the delays which would be caused by the obligation to bring a request before the authorities of the state of the childs habitual residence might compromise the protection or the interests of the child. The examples he gives are an urgent surgical operation or the rapid sale of perishable goods. The Practical Handbook suggests that A useful approach for Authorities may therefore be to consider whether the child is likely to suffer irreparable harm or to have his/her protection or interests compromised if a measure is not taken to protect him/her in the period that is likely to elapse before the authorities with general jurisdiction under articles 5 to 10 can take the necessary measures of protection (para 6.2). The examples given cover (1) medical treatment to save the childs life or prevent irreparable harm occurring to the child or his interests being compromised; (3) a rapid sale of perishable goods; but also (2) the child is having contact with a non resident parent outside his home State and makes an allegation of abuse against that parent such that contact needs to be suspended immediately and alternative care arranged; (4) there has been a wrongful removal or retention of the child and, in the context of 1980 Hague Convention proceedings, measures need to be put in place to ensure the safe return of the child (para 6.4). Among the fuller example scenarios given (in para 6.12) is the case where a mother wrongfully removes the child from Contracting State A to Contracting State B, the father makes an application under the 1980 Convention, but the mother is not permitting any contact to take place and the proceedings may take two months. The authorities in Contracting State B may consider that the lack of contact between father and child will cause irreparable harm or otherwise compromise the protection or interests of the child and make an order for interim contact. Two comments seem appropriate. First, it would be unfortunate if words in the Explanatory Report were treated as if they were words in the Convention itself. There is a world of difference between irreparable harm and compromising the protection or interests of the child. Neither expression is in the Convention, which merely asks whether the measure is necessary and the case urgent. Secondly, the Report and the Handbook clearly have abduction in mind, but only in the context of proceedings for return under the 1980 Convention. In that context, both interim contact orders and safe harbour orders are contemplated. Abduction in cases where the 1980 Convention does not apply is not considered, yet the 1996 Convention clearly provides for wrongful removal and retention in article 7. Far from derogating from the jurisdiction of the home state in these circumstances, the use of article 11 would be supporting it. It would be extraordinary if, in a case to which the 1980 Convention did not apply, the question of whether to order the summary return of an abducted child were not a case of urgency even if it was ultimately determined that it was not necessary to order the return of the child. While I would not, therefore, go so far as to say that such a case is invariably one of urgency, I find it difficult to envisage a case in which the court should not consider it to be so, and then go on to consider whether it is appropriate to exercise the article 11 jurisdiction. It would obviously not be appropriate where the home country was already seized of the case and in a position to make effective orders to protect the child. However, as Lord Wilson pointed out in the course of argument, the courts of the country where the child is are often better placed to make orders about the childs return. Those courts can take steps to locate the child, as proved necessary in this case, and are likely to be better placed to discover the childs current circumstances. Those courts can exert their coercive powers directly upon the parent who is here and indeed if necessary upon the child. The machinery of going back to the home country to get orders and then enforcing them in the presence country may be cumbersome and slow. Getting information from the home country may also be difficult. The childs interests may indeed be compromised if the country where the child is present is not able to take effective action in support of the childs return to the country of his or her habitual residence. Appeal dismissing the fathers application. Next steps Mr James Turner QC, who appears for the mother, first argued that, were we to allow this appeal, the case should return to the Court of Appeal, so that it could deal with the other grounds upon which the mother had been given permission to appeal (see para 17 above). That would simply add to the inordinate delays which have already taken place in this case and further delay the proper consideration of the substance of the matter. Any complaints about how the judge decided the case when approaching it as a standard In re J exercise are now water under the bridge I would therefore allow this appeal and set aside the order of the Court of (although they do not appear to me to have much substance, given the task on which the judge thought that he was engaged). Mr Henry Setright QC, who appears for the father, first argued that we should restore the judges order for return. That too would not be right. It is necessary for this case now to be approached on its proper footing: should the English High Court exercise the jurisdiction conferred by article 11 of the 1996 Convention and if so in what way? That question will have to be answered on the basis of up to date information about the child and his circumstances and, to the extent deemed necessary, about Moroccan law. Under article 15(1) of the 1996 Convention, in exercising their jurisdiction under Chapter II Contracting States are to apply their own law. However, under article 15(2) in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection. The International Centre for Family Law, Policy and Practice has helpfully pointed out that one option which does not appear to have been canvassed in the Court of Appeal, either by the parties or the court, was whether it was necessary to make an order for interim contact in any event. Research by Professor Marilyn Freeman for the Centre has made it clear that contact with the left behind parent is of crucial importance in preserving the relationship between the child and that parent, as well as in ending the abduction itself in some cases. Black LJ herself acknowledged the potential harm to Saleem in not keeping up his relationship with his father by direct contact (para 72). For the reasons given earlier, there may well be a need for such protection, protection which may have become more urgent the longer this case has gone on. The obvious solution is to return the case to Roderic Wood J in the High Court, for him to decide whether he can exercise the jurisdiction provided for in article 11 of the 1996 Convention and, if so, in what way. |
The question for decision in this appeal is whether there has been good service of the claim form in this action on the respondent. This is an appeal against an order of the Court of Appeal (Arden, Longmore and McFarlane LJJ) made on 15 December 2011 in which they set aside the orders of a number of judges and, in particular, an order of Sir Edward Evans Lombe (the judge) made on 28 January 2011 in which he declared, pursuant to CPR 6.37(5)(b) and/or 6.15(2), that the steps taken on 22 October 2009 to bring the claim form to the attention of the respondent amounted to good service of the claim form. The Court of Appeal held that the judge should not have made that declaration, that various extensions of the validity of the claim form for service should not have been granted, that the respondent had not been properly served with the claim form and that it followed that the claim must be dismissed. The principal issue in this appeal is whether the Court of Appeal was correct to hold that the judge should not have declared that the events of 22 October 2009 amounted to good service of the claim form. The claims As stated in the agreed statement of facts and issues, the underlying claim is for damages for fraud in connection with a contract for the purchase of shares in an Italian company called Gama SpA (Gama), made in March 2002, between the third appellant, as purchaser, and the respondent and Cicines Holdings Ltd (Cicines), as vendors, for a total consideration of US$14m. The contract expressly provided that it was governed by English law and contained a non exclusive English jurisdiction clause. The appellants claim that the shares were worthless or worth far less than the amount paid for them. The claim alleges that the fraud involved corruption on the part of a Mr Haan, a lawyer for the appellants, who acted for them in connection with the sale and is said also to have acted secretly for the respondent without the appellants knowledge. The claim form in this action was issued on 30 April 2009, following the settlement of an action (the Haan action) by the appellants against Mr Haan and a firm of solicitors (Hammonds) who were said to be vicariously liable for the torts of Mr Haan, in order to recover such part of the moneys paid under the contract as were not recovered in that action. The background facts are set out in some detail by the judge at paras 2 to 12 of his judgment of 28 January 2011, [2011] EWHC 116 (Ch). It is not necessary to set them out here, save to note that the action against Mr Haan and Hammonds came to trial on 11 March 2009 and was settled after eight days by a payment by the defendants in that action to the appellants of a sum which included costs. The claims in this action mirror those in the Haan action, although, if this action were to succeed, credit would presumably have to be given for sums recovered in the Haan action. The causes of action pleaded in this action are fraudulent misrepresentation and/or conspiracy and/or dishonest assistance and/or unconscionable bargain and/or undue influence, arising out of the alleged bribery and corruption of Mr Haan in order to bring about the contract for the purchase of shares in Gama in March 2002. They are summarised by the judge at para 19 of his judgment. The claims were brought against both the respondent and Cicines, but Cicines is not a party to this appeal. Permission to serve the proceedings out of the jurisdiction and the claimants attempts to serve them It follows from the fact that the claim form was issued on 30 April 2009 that its validity for service out of the jurisdiction would expire after six months, on 29 October 2009. The appellants took no steps for some three and a half months until they instructed counsel to settle the particulars of claim in mid August 2009. The particulars of claim were signed on 9 September 2009 and on 14 September 2009 an application for permission to serve the proceedings on the respondent outside the jurisdiction was made to Morgan J, without notice to the respondent. Both the particulars of claim and a detailed skeleton argument were put before the court. Morgan J was satisfied that there was a good arguable case for service out of the jurisdiction and for the extension of the validity of the claim form. By an order made on 14 September 2009, he gave permission under CPR 6.36 and 6.37 to serve the claim form and all other documents upon the respondent at an address at Farid Trad Street in Beirut in Lebanon (the Farid Trad Street address). He extended the time for serving the claim form from 29 October 2009 until 31 December 2009 and, to the extent required, gave permission to serve the claim form and documents by alternative means, namely by personal service of an untranslated copy of all the documents at the Farid Trad Street address. The evidence before Morgan J comprised the first and second witness statements of Mr Mascarenhas of the appellants solicitors and the first witness statement of the appellants' Lebanese lawyer, Mr Houssami. The evidence in support of the application included the following. The address in the claim form was in fact that of the respondents lawyer in Beirut. The respondents home address was believed to be the Farid Trad Street address, which was the appropriate address for service if he was to be served personally. That belief was based on what Mr Houssami had been told by individuals not identified in his witness statement and, more importantly, on the fact that he had previously effected service of legal proceedings there in late 2006 or early 2007 by leaving the documents with the respondents wife. Lebanon was not a party to any bilateral convention on service of judicial documents and, in particular, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) (Cmnd 3986) (the Hague Service Convention) did not apply. Service of originating process through the judicial authorities or the British Consulate would be likely to take several months. The appellants evidence is that Mr Houssami used a notary to seek to serve the respondent by causing a service agent or clerk to attend at the Farid Trad Street address over a period of four consecutive days between 7 am and 4 pm, which were official working hours. The respondent could not be located at that address. The respondent denies that he lived there. However, on 22 October 2009, an untranslated copy of the claim form, which was in English, together with other relevant documents were delivered to the offices of Mr Azoury, who was the respondents Lebanese lawyer in Beirut. This was not the method of service authorised by the order of Morgan J, although on the respondent's application to set aside the various orders of the court, including the order of Morgan J, which came before the judge, the appellants contended that it amounted to good service on the respondent under Lebanese law. However, the Court of Appeal resolved this issue against the appellants, and there is no appeal against that decision. The appellants continued to try to effect service through diplomatic channels at the Farid Trad Street address. They also obtained Arabic translations of the documents for service and a request for service out was delivered to the Foreign Process Section of the High Court on 19 November 2009 together with certified translations. There were some delays and, shortly before a hearing before Sales J on 16 December 2009, the appellants' solicitors were told by the Foreign and Commonwealth Office that service through diplomatic channels in Lebanon might take a further three months from receipt of the documents. On 16 December Sales J heard a further without notice application and granted a four month extension of the validity of the claim form from 31 December 2009 until 30 April 2010 so as to enable service to take place at the Farid Trad Street address through diplomatic channels. The use of diplomatic channels caused further delays. Under cover of a letter dated 11 February 2010, Mr Azoury communicated with the appellants' solicitors and returned the documents received by him on 22 October 2009. In the letter he noted that the address for service in the order of 14 September 2009, namely the Farid Trad Street address, was not that of the respondent, who had not to his knowledge ever lived there or had any connection with it. He further said that he had never had instructions to accept service of documents other than in connection with the Lebanese proceedings (referred to in para 15 below) and that the respondent had confirmed that that was the case. He gave no indication where the respondent could be served. On 17 February 2010, the appellants solicitors, PCB Litigation (PCB), replied to the letter dated 11 February asserting that Mr Azoury held a general power of attorney to act on behalf of the respondent in any legal proceedings, that the respondent had expressly elected Mr Azourys office as a domicile in the power of attorney and that the proceedings were validly served under Lebanese law. If that was not accepted, they asked Mr Azoury to provide them with the respondents usual address and to agree a date and time for service on the respondent. Mr Azoury replied that the general power of attorney could only be used to authorise him to represent the respondent when expressly instructed to do so. He did however add that the respondent would instruct English solicitors, which he did in the form of M&S Solicitors (M&S). Correspondence ensued between PCB and M&S during which M&S made it clear that it was the respondents case that he had no obligation to accept service of the proceedings, to make himself available for service or to provide an address for service. No agreement was reached. By an application notice dated 22 March 2010, the appellants applied without notice under CPR 6.15 and/or 6.37(5)(b) for an order (1) that the steps already taken to serve the claim form amounted to good service; and/or (2) that the appellants be permitted to serve the claim form and other documents by alternative means, namely upon the respondents English or Lebanese solicitors; and (3) that the time for service of the claim form be extended. Correspondence between the parties ensued and the application was adjourned by David Richards J. The adjourned application came on for hearing before Lewison J on 14 April 2010 on notice to M&S, who wrote a detailed letter dated 25 March which was put before the court at their request. Lewison J made a number of orders on 14 April 2010. They included, by paragraph 1, (without prejudice to paragraph 2) a further extension of the time for serving the claim form to 30 June 2010 and, by paragraph 2 (without prejudice to paragraph 1) an order permitting the appellants to serve the claim form by alternative means, that is by service on the respondent's English or Lebanese solicitors. The order extending time for service was made in case the alternative service order was set aside. In addition the judge adjourned the appellants application for an order that the steps already taken on 22 October 2009 to bring the claim form to the attention of the respondent amounted to good service. He adjourned that application generally but gave the appellants permission to restore it. Lewison J gave a short judgment, to which I will refer below, which is of some importance because it was subsequently incorporated in extenso into the judgment of the judge on the subsequent hearing inter partes. In the event, service was duly effected by alternative means on the respondent's English solicitors in accordance with the order of 14 April 2010 and the respondent acknowledged service on 1 May 2010. Inter partes hearing On 21 May 2010 the respondent issued an application to set aside the various orders that had been made in the action. The application came before the judge, who heard it over four days from 7 December 2010. He gave judgment on 28 January 2011. He set out the background facts in detail between paras 1 and 19. He considered first the respondents application to set aside the order of Morgan J giving permission to serve out of the jurisdiction. He first rejected the respondents submission that there was no real issue between the parties which it is reasonable for the court to try under CPR 6.37(2). The respondent relied on two grounds, first that the effect of the settlement of the Haan action was to settle the appellants claims against the respondent and, second, that the claims were time barred. The judge held at paras 28 and 29 that the settlement agreement did not have that effect. As to limitation he held that, although the cause of action accrued on 26 March 2002 and would thus be time barred as being more than six years before the issue of the claim form on 30 April 2009, the appellants had a good arguable case that they did not discover the fraud until 26 June 2003 or, alternatively May 2003, and that they could not have discovered it with reasonable diligence before 1 May 2003. It followed that the judge held that the appellants had a good arguable case that the claims were not time barred when the claim form was issued on 30 April 2009. The judge discussed this point in detail between paras 30 and 37 of his judgment. The judge further rejected the respondents case that England was not the forum conveniens and that permission to serve out should be refused under CPR 6.37(3). The judge discussed this point, again in detail, at paras 38 to 56. He concluded the point in favour of the appellants. He noted at para 54 that the appellants had given an undertaking to Morgan J not to pursue the claims in these proceedings in an action in Lebanon, which was both criminal and civil and (as explained by the judge at para 11) included the claims advanced in this action. None of these issues is relevant to this appeal. The judge thus did not reach the service issues until para 57 of his judgment. The respondent applied for orders setting aside the various orders extending time for service of the claim form, by Morgan J from 29 October to 31 December 2009, by Sales J from 31 December 2009 to 30 April 2010 and by Lewison J from 30 April 2010 to 30 June 2010. He also applied for an order setting aside Lewison Js order permitting service by alternative means on the respondents Lebanese and English lawyers. The appellants cross applied for a declaration that in the events which had happened there had been good service of the claim form on the respondent and for an order further extending the time to enable the claim form to be served through British Consular channels should the previous extensions of time stand but the order for alternative service made by Lewison J be set aside. The judge considered first the appellants cross application for a declaration. This was in effect the restoration of the appellants' application for a declaration that the steps already taken amounted to good service which Lewison J had adjourned. The judge granted the application and, as stated above, made a declaration, pursuant to CPR 6.37(5)(b) and/or 6.15(2), that the steps taken on 22 October 2009 to bring the claim form to the attention of the respondent amounted to good service of the claim form. The CPR The provisions of the CPR that are relevant for present purposes are these: Service of the claim form by an alternative method or at an alternative place 6.15 (1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service. (3) An application for an order under this rule (a) must be supported by evidence; and (b) may be made without notice. (4) An order under this rule must specify (a) the method or place of service; (b) the date on which the claim form is deemed served; and (c) the period for (i) filing an acknowledgment of service; (ii) filing an admission; or (iii) filing a defence. Power of the court to dispense with service of the claim form 6.16 (1) The court may dispense with service of a claim form in exceptional circumstances. Application for permission to serve the claim form out of the jurisdiction 6.37 (5) Where the court gives permission to serve a claim form out of the jurisdiction (b) it may (i) give directions about the method of service; and (ii) give permission for other documents in the proceedings to be served out of the jurisdiction. Methods of service general provisions 6.40 (1) This rule contains general provisions about the method of service of a claim form or other document on a party out of the jurisdiction. Where service is to be effected on a party out of the United Kingdom (3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served (a) by any method provided for by (i) rule 6.41 (service in accordance with the Service Regulation); (ii) rule 6.42 (service through foreign governments, judicial authorities and British Consular authorities); or (iii) rule 6.44 (service of claim form or other document on a State); (b) by any method permitted by a Civil Procedure Convention or Treaty; or (c) by any other method permitted by the law of the country in which it is to be served. (4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served. Service of a claim form 7.5(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue. Extension of time for serving a claim form 7.6 (1) The claimant may apply for an order extending the period for compliance with rule 7.5. (2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made (a) within the period specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by that order. (3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if (a) the court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in either case, the claimant has acted promptly in making the application. (4) An application for an order extending the time for compliance with rule 7.5 (a) must be supported by evidence; and (b) may be made without notice. As the judge noted at para 66, before him the question was raised whether rule 6.15(2) could be used, as it is used in respect of issues as to service in proceedings where the parties are within the jurisdiction, retrospectively to accept the parties' actions as constituting good service where the defendant is outside the jurisdiction. It was conceded before this court that rule 6.15(2) can be so used. For my part, I would accept that that concession was correctly made. The judge was to my mind correct to hold in para 71 that, just as the power under rule 6.15(1) prospectively to permit alternative service in a service out case is to be found in rule 6.37(5)(b)(i) or is to be implied generally into the rules governing service abroad (because that must have been the intention of the drafter of the 2008 amendments to CPR rule 6), so rule 6.37(5)(b)(i) is to be construed as conferring the power, via rule 6.15(2), retrospectively to validate alternative service in such a case, or such a power is to be implied generally into the rules governing service abroad. In any event, the contrary was not contended before this court. In para 72 the judge, in my opinion correctly, added that the power retrospectively to validate alternative service in a service out case involves consideration of whether events in the foreign country in question were capable of constituting proper service of the proceedings in the sense that the court can be satisfied that the proceedings have been properly brought to the attention of the defendant. As I will explain, that is an important point in the context of this appeal. The appellants argument is that the court had power under rule 6.15(2) to make an order that steps already taken to bring the claim form to the attention of the respondent by an alternative method constituted good service. The steps taken were the delivery of the claim form and other documents, including the particulars of claim, at Mr Azourys office in Beirut on 22 October 2009, which was within the initial six months validity of the claim form. Orders under rule 6.15(1) and, by implication, also rule 6.15(2) can be made only if there is a good reason to do so. The question, therefore, is whether there was a good reason to order that the steps taken on 22 October 2009 in Beirut to bring the claim form to the attention of the respondent constituted good service of the claim form upon him. The judge held that there was. In doing so, he was not exercising a discretion but was reaching a value judgment based on the evaluation of a number of different factors. In such a case, the readiness of an appellate court to interfere with the evaluation of the judge will depend upon all the circumstances of the case. The greater the number of factors to be taken into account, the more reluctant an appellate court should be to interfere with the decision of the judge. As I see it, in such circumstances an appellate court should only interfere with that decision if satisfied that the judge erred in principle or was wrong in reaching the conclusion which he did. It is important to note that rule 6.15 applies to authorise service by a method or at a place not otherwise permitted by CPR Part 6. The starting point is thus that the defendant has not been served by a method or at such a place otherwise so permitted. It therefore applies in cases (and only in cases) where none of the methods provided in rule 6.40(3), including any other method permitted by the law of the country in which it is to be served (see rule 6.40(3)(c)), has been successfully adopted. The only bar to the exercise of the discretion under rule 6.15(1) or (2), if otherwise appropriate, is that, by rule 6.40(4), nothing in a court order must authorise any person to do anything which is contrary to the law of the country where the claim form is to be served. So an order could not be made under rule 6.15(2) in this case if its effect would be contrary to the law of Lebanon. Although it was held that delivery of the claim form was not permitted service under Lebanese law, it was not suggested or held that delivery of the documents was contrary to Lebanese law or that an order of an English court that such delivery was good service under English law was itself contrary to Lebanese law. The judgment at first instance As stated above, the judge set out Lewison Js judgment in extenso. At para 59 the judge identified the parts of the evidence which had been before Lewison J and he then quoted paras 2 to 4 of the judgment as follows: 2. The underlying claim raises serious allegations of fraud against the Defendant, Mr Baadarani; who is a Lebanese national. Attempts have been made to serve via the Consular authorities in the Lebanon in accordance with CPR Part 6, rule 42. Those attempts have proved very difficult, not least, because there is considerable uncertainty about the method by which service should be effected which, according to the evidence, goes back to a Treaty of the 1920s between the Lebanon and France. Nonetheless, the claim form and its accompanying documents were, to use a neutral word, delivered to Mr Baadaranis Lebanese lawyer, who holds a power of attorney, which enables him to conduct proceedings, including proceedings in this jurisdiction. on Mr Baadarani's behalf. That lawyer signed for the papers and retained them for some four months before returning them. According to the claimant's Lebanese expert, that amounts to good service under Lebanese law. Nonetheless, Mr Baadarani appears to be denying that he has been properly served and has declined to provide an address for service. 3. In addition to delivery of those papers to the Lebanese lawyer, Mr Baadarani has instructed a firm of English solicitors called M & S Solicitors Ltd, who have taken up the cudgels on his behalf and so far as the evidence goes, have themselves at least had sight of the claim form and the other relevant documents. They have written a long letter of 25 March 2010, which has been placed before me and to which Mr Penny, who appears on behalf of the claimant, has quite properly referred. The points made in that letter have been addressed in the fifth witness statement of Mr Mascarenhas, which I have read. 4. The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations. The provisions of CPR rule 6.37(5) say that the court may, in giving permission to serve out of the jurisdiction: Give directions about the method of service. That is a quite general provision and, as it seems to me, would ordinarily mean that the court would make directions, which did not involve one of the prescribed methods of service dealt with by rule 6.40 and following. In other words, it is inherent in rule 6.37(5)(b)(i) that the court may make directions about alternative methods of service. Where the court is dealing with service of proceedings within the jurisdiction the court also has the power to declare that steps already taken to bring the proceedings to the notice of a defendant should count as good service. Mr Penny did at one stage submit that the same power applied to service out of the jurisdiction, but in the light of an interchange between him and me he is not pressing that submission and I am not ruling for or against it. I will adjourn that part of the application notice in case it becomes a live issue at a later date. In para 60 the judge noted a number of points derived from Lewison Js judgment which he observed were based, not on the appellants evidence, but on the evidence of Mr Azoury and on the respondents solicitors letter of 25 March 2010. In particular Lewison J found, not only that Mr Azoury retained the documents delivered on 22 October 2009, but that they or a copy of them had been in the hands of the respondents English lawyers prior to writing their long letter of 25 March 2010. Lewison J found that the respondent must have been fully aware of the contents of the claim form. The judge concluded that such a finding of fact seemed to him inevitably to follow from Lewison Js other findings, which, because of their source, were in his judgment unchallengeable. For present purposes, the critical part of the reasoning of the judge is in paras 73 and 74 of his judgment. They are in these terms: 73. In my judgment, the declaration sought by the claimants in this case should be made. The evidence before Lewison J and before me is sufficient to demonstrate that this is an appropriate case for the use of the power. The principal reasons for doing so are that the method of service through diplomatic channels in Lebanon has proved impractical and any attempt to pursue it further will lead to unacceptable delay and expense. B has demonstrated that he is unwilling to co operate with service of the proceedings by disclosing his address in the Lebanon, but, and most importantly, it is clear that B, through his advisers, is fully apprised of the nature of the claim being brought. 74. The delivery of the claim form and supporting documents to Bs Lebanese lawyer on 22 October 2009, which I have found is to be treated as good service of the proceedings, took place during the initial six month period of validity of the claim form. Accordingly, my conclusion means that the three orders for extension of the validity of the claim form were unnecessary and I need not deal with the question of whether those orders are to be set aside as the first defendant contends. Nor need I deal with the claimants application for a yet further extension of that validity. The judge thus determined the issue of service on the basis that there was good reason for making the declaration sought under CPR rule 6.15(2). In short he held that there was a good reason to order that the steps taken to deliver the documents to Mr Azourys offices in Beirut on 22 October 2009 and thus to bring the documents to the respondents attention amounted to good service on him. The Court of Appeal discussion The respondent appealed to the Court of Appeal against the making of that declaration. It appears to me that the central question on that appeal ought to have been whether the judge was entitled to make the declaration and that the appeal should have turned on the question whether, having afforded the decision of the judge appropriate respect, the Court of Appeal concluded that he erred in principle or was wrong in reaching the conclusion which he did. However, that does not seem to have been the focus of the argument in the Court of Appeal. In the Court of Appeal Longmore LJ, with whom McFarlane and Arden LJJ agreed, first considered and, at paras 5 to 8, rejected the first ground of appeal, which again asserted that England was not the appropriate forum for these proceedings. The respondent has not sought to argue that point in this court. As to service, Longmore LJ referred to some of the evidence in detail at paras 11 to 16. He then referred to the judgment and, in particular, to the declaration at para 17. At para 18 he said this: It would be unusual (to say the least) for a judge to validate a form of service which was not valid by local law. It must follow that, although he does not spell it out, the judge must by implication be taken to have decided that the service which took place was valid by Lebanese law because he also decided that he would and should retrospectively validate the service that had taken place. It was submitted by Mr Freedman QC on behalf of the appellants that the judge did not hold, either expressly or by implication, that the delivery of the documents on 22 October 2009 was good service under Lebanese law. I would accept Mr Freedmans submission. The judge did not hold in paras 73 and 74 that there was good service under Lebanese law. If he had so held, there would have been no need for the declaration granted by the judge because the service would have been good service as service by any other method permitted by the law of the country in which it is to be served (see rule 6.40.(3)(c)), which in this case was of course Lebanon. As already explained, an order under rule 6.15(2) may only be made where there is a good reason to authorise service by a method or at a place not otherwise permitted by Part 6. The judge could, therefore, not have made the declaration if he had taken the view that the delivery of the documents on 22 October was good service under Lebanese law. Moreover, it is in my opinion clear from the first sentence of para 74 that the judge was not holding that the delivery was good service under Lebanese law but that it was to be treated as good service under English law pursuant to CPR 6.15(2). The question is whether the judge was entitled to hold that there was a good reason to order that the delivery of the documents to Mr Azoury on 22 October 2009 was to be treated as good service. Whether there was good reason is essentially a matter of fact. I do not think that it is appropriate to add a gloss to the test by saying that there will only be a good reason in exceptional circumstances. Under CPR 6.16, the court can only dispense with service of the claim form in exceptional circumstances. CPR 6.15(1) and, by implication, also 6.15(2) require only a good reason. It seems to me that in the future, under rule 6.15(2), in a case not involving the Hague Service Convention or a bilateral service treaty, the court should simply ask whether, in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service. This is not a case in which the Hague Service Convention applies or in which there is any bilateral service convention or treaty between the United Kingdom and Lebanon. In the courts below, the case was argued throughout on that basis and, although there was a hint in the argument before this court that that might not be the case, it was accepted that the appeal should be determined on that basis. It follows that an alternative service order does not run the risk of subverting the provisions of any such convention or treaty: cf the reasoning of the Court of Appeal in Knauf UK GmbH v British Gypsum Ltd [2002] 1 WLR 907, paras 46 to 59 and Cecil v Bayat [2011] EWCA Civ 135, [2011] 1 WLR 3086, paras 65 to 68 and 113. In particular, Rix LJ suggested at para 113 of the latter case that it may be that orders permitting alternative service are not unusual in the case of countries with which there are no bilateral treaties for service and where service can take very long periods of up to a year. I agree. I say nothing about the position where there is a relevant convention or treaty. As stated above, in a case of this kind the court should simply ask itself whether, in all the circumstances of the particular case, there is a good reason to make the order sought. It should not be necessary for the court to spend undue time analysing decisions of judges in previous cases which have depended upon their own facts. The mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2). On the other hand, the wording of the rule shows that it is a critical factor. As the editors of the 2013 edition of the White Book note (vol 1, para 6.15.5), rule 6.15(2) was designed to remedy what were thought to be defects as matters stood before 1 October 2008. The Court of Appeal had held in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121 that the court had no jurisdiction to order retrospectively that an erroneous method of service already adopted should be allowed to stand as service by an alternative method permitted by the court. The editors of the White Book add that the particular significance of rule 6.15(2) is that it may enable a claimant to escape the serious consequences that would normally ensue where there has been mis service and, not only has the period for service of the claim form fixed by CPR 7.5 run, but also the relevant limitation period has expired. Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served, here the claim form, is communicated to the defendant. In Olafsson v Gissurarson (No 2) [2008] EWCA Civ 152, [2008] 1 WLR 2016, para 55 I said, in a not dissimilar context, that the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant's case: see eg Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506, 509 per Lord Brightman, and the definition of service in the glossary to the CPR, which describes it as steps required to bring documents used in court proceedings to a person's attention. I adhere to that view. It is plain from paragraph 73 of his judgment quoted above that the judge took account of a series of factors. He said that, most importantly, it was clear that the respondent, through his advisers was fully apprised of the nature of the claim being brought. That was because, as the judge had made clear at para 60, the respondent must have been fully aware of the contents of the claim form as a result of it and the other documents having been delivered to his lawyers on 22 October in Beirut and communicated to his London solicitors and to him. As Lewison J said at para 4 of his judgment (quoted above): The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations. I agree. In addition the judge had regard to the fact that service through diplomatic channels in Lebanon had proved impractical and that any attempt to pursue it further would lead to unacceptable delay and expense. Furthermore, the judge noted that the respondent was unwilling to co operate with service of the proceedings by disclosing his address in the Lebanon. While I accept the submission made on behalf of the respondent that he was not under a duty to disclose his address, his refusal to co operate does seem to me to be a highly relevant factor in deciding whether there was a good reason for treating as good service the delivery of the documents in Beirut within the six months validity of the claim form in circumstances in which the documents came to his knowledge. It was submitted that the judge did not have regard either to the three and a half month delay between the time the appellants issued the claim form and the time they instructed counsel to settle particulars of claim or to the fact that the claim was time barred. I would not accept those submissions. It is true that he did not expressly refer to either point in the part of his judgment dealing with service but I do not think that he can have been unaware of either point. As to the time bar, the judge was plainly well aware of it. Indeed, he discussed the limitation defence in detail between paras 30 and 33. The significance of the time bar defence was in the minds of the parties and the judge throughout. The judge thought that there was good reason for making an order under rule 6.15(2) notwithstanding that defence and was, in my view, entitled to take that view. As to the three and a half months delay, the judge must have been aware of it. It seems to me to be likely that he took the view that, given the difficulties which faced the appellants in serving the claim form, the delay made no difference. He was entitled to do so. The critical points were that the documents were delivered within the six months validity of the claim form and brought to the respondents attention and that service via diplomatic channels had proved impracticable. In these circumstances I do not think that the judge made an error of principle. He correctly directed himself that the question was whether there was a good reason to order under rule 6.15(2) that the steps already taken to bring the claim form to the attention of the respondent constituted good service. He answered that question in the affirmative and was entitled to reach that conclusion. The Court of Appeal did not focus on the reasoning of the judge. The essential reasoning of the Court of Appeal is set out in the judgment of Longmore LJ at paras 22 to 32. He considered first (between paras 22 and 28) whether service on Mr Azoury was good service under Lebanese law and concluded at para 29 that it was not. As I indicated above, the appellants do not challenge that conclusion. There are five respects in which I respectfully disagree with the conclusions reached by the Court of Appeal. The first is that referred to in paras 31 and 32 above, namely that the judge did not decide that there had been valid service of the claim form under Lebanese law. The second is related to the first. In paras 22 and 23 Longmore LJ said this: 22. [CPR 6.37(5)(b)(i)] authorises the court therefore to make an order for alternative service pursuant to CPR 6.15(1) and also to make such an order with retrospective effect pursuant to CPR 6.15(2). Nevertheless the exercise of this power is liable to make what is already an exorbitant power still more exorbitant and I am persuaded by Mr Greatorex that it must indeed be exercised cautiously and, as Stanley Burnton LJ said in Cecil v Bayat [2011] 1 WLR 3086, para 65, should be regarded as exceptional. It would, therefore, usually be inappropriate to validate retrospectively a form of service which was not authorised by an order of an English judge when it was effected and was not good service by local law. CPR 6.40 permits three methods of service including service through the British Consular authorities and any additional method of service should usually not be necessary. The fact that CPR 6.40(4) expressly states that nothing in any court order can authorise or require any person to do anything contrary to the law of the country in which the document is to be served does not mean that it can be appropriate to validate a form of service which, while not itself contrary to the local law in the sense of being illegal, is nevertheless not valid by that law. It follows that a claimant who wishes retrospective validation of a method of service in a foreign country must (save perhaps where there are adequate safeguards which were not present in this case) show that the method of service which is to be retrospectively validated was good service by the local law. Service on Mr Azoury would not be regarded as good service on Mr Baadarani as a matter of English law merely because Mr Azoury was clothed with a general power of attorney. Can Mr Freedman show that the position is any different in Lebanese law? 23. I do not agree that for the court to make an order under rule 6.15(2) is to make what is already an exorbitant power still more exorbitant. I recognise of course that service out of the jurisdiction has traditionally been regarded as the exercise of an exorbitant jurisdiction. That is a consideration which has been of importance in determining whether permission to serve out of the jurisdiction should be granted, although in this regard I agree with the approach set out by Lord Sumption in his judgment. In any event, in this case, it is now accepted that it was proper to serve the claim form out of the jurisdiction. The rules as to the method of service set out above seem to me to have the legitimate sensibilities of other states in mind. It is for that reason that CPR 6.40(4) provides that nothing in CPR 6.40(3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country of service. I have already expressed my view that the order recognising the delivery of the claim form as alternative service under English law is not contrary to Lebanese law. Moreover it was not in breach of any convention or treaty but merely recognised that the claim form (and other documents) had been brought to the attention of the respondent. I do not think, therefore, that in a case not involving the Hague Service Convention or a bilateral service treaty, an order under rule 6.15(2) must be regarded as exceptional or, indeed as suggested in para 29 of Longmore LJs judgment, that there must be a very good reason for it. As already stated, the CPR do not so provide. They merely require good reason. My third reason for disagreeing with the Court of Appeal concerns para 23 of Longmore LJs judgment, where he says that a claimant who wishes the court retrospectively to validate alternative service abroad must (save perhaps where there are adequate safeguards which were not present in this case) show that the method used was good service under the local law. As noted above, that would render rule 6.15(1) and (2) otiose. Without the words in brackets, the proposition in para 23 would not be correct. It is not however clear to me what safeguards the court had in mind. In any event, for the reasons already stated, Longmore LJ was wrong in my view to suggest that a court needs a very good reason to make an order under rule 6.15(2) where the steps taken did not constitute valid service under local law. The fourth reason arises out of the Court of Appeals reliance upon the fact that the appellants did not issue the claim form until nearly the end of the limitation period. At para 29 of his judgment, Longmore LJ stated: 29. Since, therefore, Mr Azoury had no authority in fact to accept service and since he did not, in any event, purport to do so, the delivery of the claim form and associated documentation to him did not, in my view, constitute good service in Lebanese law. I do not, therefore, think that the judge should have retrospectively validated that service as alternative service to that directed by Morgan J unless there was very good reason to do so. The only reason to do so was to avoid the claim becoming time barred, which is not in itself a good reason (let alone an exceptional reason) for preserving a stale claim. Mr Freedman submits that both personal service and service through diplomatic channels had become impossible, but that impossibility (as to which there was very little evidence) has only arisen as a result of the dilatory way in which the claimants have pursued the English claim. They were asking for trouble by only issuing their claim form shortly before the limitation expired. If the claim form had been issued say four years earlier, and a diligent process server had been instructed, Mr Baadarani might well have been served at one of the three address identified by Mr Houssami in his witness statement and the order of Morgan J would have been complied with. Four years might even have been long enough for diplomatic channels to be effective but it is not suggested that Mr Baadarani could only be served in that manner. If it really was proving impossible to effect service over that long period, an application for alternative service could still have been made well before the six year period had expired and no retroactive gymnastics would have been necessary. As I read para 29, the delay prior to the issue of the claim form was a significant part of the reasoning of the Court of Appeal, although, as I understand it, it was not a point taken on behalf of the respondent. I would accept the submission that (save perhaps in exceptional circumstances) events before the issue of the claim form are not relevant. The focus of the inquiry on an issue of this kind is not and (so far as I am aware) has never been on events before the issue of the writ or claim form. The relevant focus is upon the reason why the claim form cannot or could not be served within the period of its validity. The judge held that there was an issue to be tried on the question whether the appellants claim was time barred. In resolving the issues of service, the court had therefore to treat the claim form as issued in time. This brings me to a consideration of the facts and to the fifth respect in which I respectfully disagree with the Court of Appeal. In para 31 Longmore LJ said this: 31. In the present case both the evidence of the fact (if it be a fact) that Mr Baadarani did in fact reside at the suggested address and the evidence of the attempt to serve him there was very meagre. That evidence does not, in my judgment, show that there was such an ineffective attempt at service to constitute a good reason for not serving him at that address in such a way as to justify even an original order for alternative service pursuant to CPR 6.15(1) let alone an order that a form of service unilaterally chosen by the claimants should be deemed to be good service pursuant to CPR 6.15(2). It appears that the respondent did not in fact reside at the Farid Trad Street address. However, there is no reason to think that the appellants did not genuinely think that he did. Moreover there is no evidence that they could have found out what his address was, especially in circumstances where he was refusing to tell them where he lived. If he did not live at the Farid Trad Street address, further attempts to serve him there would have proved fruitless. In these circumstances, the judge was entitled to reach the conclusions of fact which he did. As the judge explained, there were difficulties in serving the claim form, the appellants cannot be blamed for failing to ascertain his address, especially in circumstances in which the respondent instructed his lawyers to refuse to tell the appellants what it was. Moreover, the claim form was delivered to Mr Azourys office within the period of its validity, with the result that it came to the attention of the respondent. In all these circumstances he held that there was a good reason to grant the declaration. In my opinion there is no legitimate basis on which to interfere with that decision. CONCLUSION For these reasons I would allow the appeal and restore the declaration made by the judge. In these circumstances the other issues argued on the appeal do not arise. LORD SUMPTION (with whom Lord Neuberger, Lord Reed and Lord Carnwath agree) In his judgment in the Court of Appeal, Longmore LJ described the service of the English Courts process out of the jurisdiction as an exorbitant jurisdiction, which would be made even more exorbitant by retrospectively authorising the mode of service adopted in this case. This characterisation of the jurisdiction to allow service out is traditional, and was originally based on the notion that the service of proceedings abroad was an assertion of sovereign power over the Defendant and a corresponding interference with the sovereignty of the state in which process was served. This is no longer a realistic view of the situation. The adoption in English law of the doctrine of forum non conveniens and the accession by the United Kingdom to a number of conventions regulating the international jurisdiction of national courts, means that in the overwhelming majority of cases where service out is authorised there will have been either a contractual submission to the jurisdiction of the English court or else a substantial connection between the dispute and this country. Moreover, there is now a far greater measure of practical reciprocity than there once was. Litigation between residents of different states is a routine incident of modern commercial life. A jurisdiction similar to that exercised by the English court is now exercised by the courts of many other countries. The basic principles on which the jurisdiction is exercisable by the English courts are similar to those underlying a number of international jurisdictional conventions, notably the Brussels Convention (and corresponding regulation) and the Lugano Convention. The characterisation of the service of process abroad as an assertion of sovereignty may have been superficially plausible under the old form of writ (We command you). But it is, and probably always was, in reality no more than notice of the commencement of proceedings which was necessary to enable the Defendant to decide whether and if so how to respond in his own interest. It should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like exorbitant. The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum. For these reasons I cannot share the starting point from which the Court of Appeal approached the present case. I consider that the appeal should be allowed for the reasons given in the judgment of Lord Clarke. |
The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. Terminology The term prolonged disorder of consciousness encompasses both a permanent vegetative state (sometimes referred to as a persistent vegetative state, and often shortened to PVS) and a minimally conscious state (or MCS). Prolonged disorder of consciousness is commonly shortened to PDOC and that practice is followed in this judgment. Clinically assisted nutrition and hydration is now referred to as CANH, although it has been variously described in the past. The facts Mr Y was an active man in his fifties when, in June 2017, he suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage. He never regained consciousness following the cardiac arrest. He required CANH, provided by means of a percutaneous endoscopic gastrostomy, to keep him alive. The month after his cardiac arrest, Mr Y was admitted to the regional hyper acute rehabilitation unit under the control of the first respondent NHS Trust so that his level of awareness could be assessed. In late September, his treating physician concluded that he was suffering from PDOC and that even if he were to regain consciousness, he would have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life. A second opinion was obtained in October, from a consultant and professor in Neurological Rehabilitation, who considered that Mr Y was in a vegetative state and that there was no prospect of improvement. Mrs Y and their children believed that he would not wish to be kept alive given the doctors views about his prognosis. The clinical team and the family agreed that it would be in Mr Ys best interests for CANH to be withdrawn, which would result in his death within two to three weeks. On 1 November 2017, the NHS Trust issued an application in the Queens Bench Division of the High Court for a declaration (1) that it was not mandatory to seek the courts approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patients family were agreed that it was not in the patients best interests that he continue to receive that treatment, and (2) that no civil or criminal liability would result if CANH were to be withdrawn. At a directions hearing on 3 November, Fraser J invited the Official Solicitor to act as Mr Ys litigation friend in the proceedings but, rather than adjourning the case for a hearing in the Court of Protection as the Official Solicitor sought, he ordered that the final hearing be expedited and listed before OFarrell J in the Queens Bench Division on 10 November. On 10 November, OFarrell J [2017] EWHC 2866 (QB) refused the Official Solicitors renewed application for the case to be transferred to the Court of Protection. She considered that it would have been appropriate to transfer the case if the court were being asked to determine whether the withdrawal of treatment was in Mr Ys best interests, but that, in fact, the issue she had to determine was a purely legal issue. She concluded that it was not established that there was any common law principle that all cases concerning the withdrawal of CANH from a person who lacks capacity had to be sanctioned by the court. In her view, at para 52, where the clinicians have followed the Mental Capacity Act and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court. Such was the situation in Mr Ys case, she considered, and accordingly she granted the following declaration: It is not mandatory to bring before the court the withdrawal of CANH from Mr Y who has a prolonged disorder of consciousness in circumstances where the clinical team and Mr Ys family are agreed that it is not in his best interests that he continues to receive that treatment. The judge granted the Official Solicitor permission to appeal and certified the case, pursuant to section 12 of the Administration of Justice Act 1969, as appropriate for an appeal directly to the Supreme Court. In case the result of the appeal was that proceedings should be brought in the Court of Protection, the judge gave directions so that any such proceedings could progress without delay. So it was that the Official Solicitor obtained a further expert report, from a different neuro rehabilitation consultant. However, although CANH had been continued pending the appeal, on 22 December 2017 Mr Y died, having developed acute respiratory sepsis. The expert instructed by the Official Solicitor could only base his report upon documentation, including Mr Ys medical records. In the report, he referred to the difficulty in diagnosing vegetative and minimally conscious states, and gave his opinion that, had Mr Y survived, further assessments, over a longer period of time, would have been required in order to reach a reliable conclusion that he was in a permanent vegetative state. Notwithstanding that, in view of Mr Ys death, the proceedings could no longer serve any purpose for him and his family, this court determined that the appeal should go ahead, because of the general importance of the issues raised by the case. Accordingly, the court has received full argument from Mr Gordon QC and Ms Paterson for the Official Solicitor, and Mr Sachdeva QC and Ms Dobson for the first two respondents (the NHS Trust which manages the regional hyper acute rehabilitation unit at which Mr Y was a patient until he was discharged to a nursing home and the Clinical Commissioning Group which funded the nursing home). Written submissions were permitted from the four intervenors. Mrs Y understandably felt unable to participate in the proceedings at what is an exceptionally sad and difficult time for her and her family. The opposing arguments in brief summary I will look at the Official Solicitors case in detail later, but it may help to introduce the issues now by means of the briefest of summaries. The Official Solicitor submits that, in every case, court approval must be sought before CANH can be withdrawn from a person with PDOC, thus ensuring that the patients vulnerable position is properly safeguarded by representation through the Official Solicitor, who can obtain independent expert medical reports about his condition and prognosis, and make submissions to the court on his behalf if appropriate. The Official Solicitor derives this requirement essentially from the common law and/or the European Convention on Human Rights (ECHR), in particular article 2 and article 6. In his submission, his position finds support in the Mental Capacity Act Code of Practice, issued on 23 April 2007 pursuant to section 42(1) of the Mental Capacity Act 2005 (MCA 2005). He submits that it is irrelevant that neither the MCA 2005 nor the Court of Protection Rules specifically impose the requirement for which he contends. The first and second respondents disagree, submitting that neither the common law nor the ECHR imposes a universal requirement to obtain court approval prior to the withdrawal of CANH. The case law preceding the MCA 2005 The MCA 2005 was a watershed in the law relating to people who lack capacity. Before the Act, questions relating to the management of the property and affairs of adults who did not have capacity to make their own decisions, were dealt with in the old style Court of Protection, and questions relating to the care and welfare of such adults were resolved under the inherent jurisdiction of the High Court. The MCA 2005 established a new regime with, amongst other things, a new Court of Protection which has jurisdiction in relation to both property matters and issues relating to personal care. Nevertheless, an examination of the common law in relation to the treatment of patients such as Mr Y must commence with the pre MCA 2005 cases, and I turn first to two centrally important House of Lords decisions, In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 and Airedale NHS Trust v Bland [1993] AC 789. In In re F (Mental Patient: Sterilisation), the House of Lords considered whether the court had jurisdiction to grant a declaration that it would not be unlawful for a sterilisation operation to be carried out on a woman who, because of mental incapacity, was unable to consent to the operation herself. Although not concerned with precisely the sort of life and death decision that is involved in the present litigation, the decision is relevant because their Lordships were required to determine a sensitive and difficult question relating to medical treatment of a mentally incapacitated adult. They determined that the court could, under its inherent jurisdiction, make a declaration that the proposed operation was in the patients best interests and therefore lawful. They also held that where the procedure was intended to prevent pregnancy rather than for the purpose of treating a disease, although not necessary to establish the lawfulness of the operation, it was highly desirable, as a matter of good practice, that a declaration be obtained before the operation took place. The starting point for the reasoning was the established common law position that a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force without their consent, and if he were to do so, he would commit the tort of trespass to the person (p 55), but that, in the case of a patient who lacked the capacity to consent to treatment, a doctor could lawfully operate or give other treatment provided that it was in the best interests of the patient. There was a range of views as to whether, with an operation such as the proposed sterilisation operation, it was desirable/necessary to obtain a declaration from the court that the procedure was in the patients best interests. All were in favour of a declaration being obtained but, for the most part, put the matter on the basis of good practice, rather than finding it to be a legal requirement that such a declaration first be obtained. There was fairly general agreement with the approach of Lord Brandon of Oakbrook. At p 56, he identified six special features of the particular operation which were influential in his view that, whilst the lawfulness of the treatment did not depend upon the courts approval and it was not therefore strictly necessary as a matter of law to seek it, the involvement of the court was highly desirable as a matter of good practice. The six features were: first, the operation will in most cases be irreversible; secondly, by reason of the general irreversibility of the operation, the almost certain result of it will be to deprive the woman concerned of what is widely, and as I think rightly, regarded as one of the fundamental rights of a woman, namely, the right to bear children; thirdly, the deprivation of that right gives rise to moral and emotional considerations to which many people attach great importance; fourthly, if the question whether the operation is in the best interests of the woman is left to be decided without the involvement of the court, there may be a greater risk of it being decided wrongly, or at least of it being thought to have been decided wrongly; fifthly, if there is no involvement of the court, there is a risk of the operation being carried out for improper reasons or with improper motives; and, sixthly, involvement of the court in the decision to operate, if that is the decision reached, should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims. Lord Goff of Chieveley expressed his own view (p 79) that, as a matter of practice, the operation should not be performed without first obtaining the opinion of the court that the operation is, in the circumstances, in the best interests of the person concerned, by seeking a declaration that the operation is lawful. In his opinion, the courts guidance should be sought in order to obtain an independent, objective and authoritative view on the lawfulness of the procedure in the particular circumstances of the relevant case, after a hearing at which it can be ensured that there is independent representation on behalf of the person upon whom it is proposed to perform the operation. Lord Griffiths would have been minded to make it a legal requirement to obtain the sanction of the High Court in all cases, and considered that the common law could be adapted to introduce such a requirement. However, he recognised that he would be making new law, and that the other members of the House considered that it was not open to them to take that course. He therefore accepted what Lord Brandon had proposed, but as second best (pp 70 to 71). Airedale NHS Trust v Bland [1993] AC 789 concerned a man who had been left in a persistent vegetative state after being injured in the Hillsborough disaster. He could see, hear, and feel nothing and could not communicate in any way. There was no prospect whatever that he would make any recovery, but if he continued to have the medical care that he was receiving, there was every likelihood that he would maintain his present state of existence for many years to come. Over three years after the accident, the family and the patients doctors having formed the view that, in these circumstances, it was appropriate to stop prolonging his life by artificial means, an application was made by the hospital authority for declarations that the measures keeping him alive, including artificial nutrition and hydration, could lawfully be discontinued, which would result in his death. The House of Lords held that the declarations could and should be granted, explaining why in a series of thoughtful speeches considering the moral and legal aspects of the issue. It is important to set the decision in context. Recent developments in medical technology, including the development of life support systems, had made it possible for patients who would otherwise have died to survive. As Lord Browne Wilkinson said (p 878C et seq), those recent developments had fundamentally affected previous certainties about what was life and what was death, and meant that the time and manner of someones death might no longer be dictated by nature but might instead be determined by a human decision. Wholly new ethical and social problems had been raised by the developments, and society was not of one mind about them. It was not a foregone conclusion that the withdrawal of artificial life support measures could be tolerated at all by the criminal and civil law, and the decision to endorse the declarations that had been granted by the President of the Family Division was only arrived at after an extensive review of the law, and then only on a narrow basis tied firmly to the facts of the case. Their Lordships were at pains to emphasise that the case was an extreme one, it having been overwhelmingly established that the patient was, and would remain, insensate. They were conscious that there would be cases in which the facts were less extreme and the issues, legal and ethical, even more difficult. They did not seek, in their decision, to provide a set of universal principles, dictating the answers in all other cases, and there was acknowledgment that some of the issues arising may more properly be for Parliament to determine. A sense of the delicacy with which the House was proceeding is conveyed by Lord Mustills observation that [e]very step forward requires the greatest caution (p 899F). In these circumstances, it is not at all surprising that their Lordships held that, for the time being, the guidance of the court should be sought before treatment and care of a patient were discontinued. Given the central importance that Mr Gordon attaches to what they said about this, the relevant passages will need to be cited in full in due course, but, before doing that, it is appropriate to underline the following three points of importance that are found in the speeches and have relevance not only to the decision in the Bland case, but also to subsequent decisions, including the present one: i) As has already been seen from In re F (Mental Patient: Sterilisation) (supra), it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his consent; to do so is both a tort and the crime of battery. Such an adult is at liberty to decline treatment even if that will result in his death, and the same applies where a person, in anticipation of entering into a condition such as PVS, has given clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive. ii) Where a person, due to accident or some other cause, becomes unconscious and thus unable to give or withhold consent, it is lawful for doctors to give such treatment as, in their informed opinion, is in the best interests of the patient. Where it is no longer in the best interests of the patient to provide treatment, it may, and ultimately should, be discontinued (see, for example, p 867 of Lord Goffs speech, with which Lord Keith of Kinkel and Lord Lowry agreed). iii) The argument that artificial feeding (in that case by nasogastric tube) was not medical treatment at all, but indistinguishable from normal feeding, was rejected. Regard had to be had to the whole regime which was keeping the patient alive, and in any event a medical technique was involved in the feeding. I come now to look in more depth at what their Lordships had to say in the Bland case when explaining their position in relation to declaratory relief. It is useful to start with their recognition that the courts and the medical profession were working together in addressing the new situation that had arisen as a result of scientific advances. The medical profession had already been working on the issue and there was available a Discussion Paper on Treatment of Patients in Persistent Vegetative State, issued in September 1992 by the Medical Ethics Committee of the British Medical Association. On the basis of it, at p 870, Lord Goff paid tribute to the evident care with which the topic was being considered by the medical profession. In a passage which remains relevant today, he commented as follows on the respective roles of doctors and judges in life and death cases (p 871): I also feel that those who are concerned that a matter of life and death, such as is involved in a decision to withhold life support in case of this kind, should be left to the doctors, would do well to study this paper. The truth is that, in the course of their work, doctors frequently have to make decisions which may affect the continued survival of their patients, and are in reality far more experienced in matters of this kind than are the judges. It is nevertheless the function of the judges to state the legal principles upon which the lawfulness of the actions of doctors depend; but in the end the decisions to be made in individual cases must rest with the doctors themselves. In these circumstances, what is required is a sensitive understanding by both the judges and the doctors of each other's respective functions, and in particular a determination by the judges not merely to understand the problems facing the medical profession in cases of this kind, but also to regard their professional standards with respect. Mutual understanding between the doctors and the judges is the best way to ensure the evolution of a sensitive and sensible legal framework for the treatment and care of patients, with a sound ethical base, in the interest of the patients themselves. This is a topic to which I will return at the end of this opinion, when I come to consider the extent to which the view of the court should be sought, as a matter of practice, in cases such as the present. At p 873, Lord Goff did return to the topic, saying: I turn finally to the extent to which doctors should, as a matter of practice, seek the guidance of the court, by way of an application for declaratory relief, before withholding life prolonging treatment from a PVS patient. The President considered that the opinion of the court should be sought in all cases similar to the present. In the Court of Appeal, Sir Thomas Bingham MR expressed his agreement with Sir Stephen Brown P in the following words, ante, pp 815 816: This was in my respectful view a wise ruling, directed to the protection of patients, the protection of doctors, the reassurance of patients families and the reassurance of the public. The practice proposed seems to me desirable. It may very well be that with the passage of time a body of experience and practice will build up which will obviate the need for application in every case, but for the time being I am satisfied that the practice which the President described should be followed. Before the Appellate Committee, this view was supported both by Mr Munby, for the Official Solicitor, and by Mr Lester, as amicus curiae. For the respondents, Mr Francis suggested that an adequate safeguard would be provided if reference to the court was required in certain specific cases, ie, (1) where there was known to be a medical disagreement as to the diagnosis or prognosis, and (2) problems had arisen with the patients relatives disagreement by the next of kin with the medical recommendation; actual or apparent conflict of interest between the next of kin and the patient; dispute between members of the patients family; or absence of any next of kin to give their consent. There is, I consider, much to be said for the view that an application to the court will not be needed in every case, but only in particular circumstances, such as those suggested by Mr Francis. In this connection I was impressed not only by the care being taken by the Medical Ethics Committee to provide guidance to the profession, but also by information given to the Appellate Committee about the substantial number of PVS patients in the country, and the very considerable cost of obtaining guidance from the court in cases such as the present. However, in my opinion this is a matter which would be better kept under review by the President of the Family Division than resolved now by your Lordships House. I understand that a similar review is being undertaken in cases concerned with the sterilisation of adult women of unsound mind, with a consequent relaxation of the practice relating to applications to the court in such cases. For my part, I would therefore leave the matter as proposed by the Master of the Rolls; but I wish to express the hope that the President of the Family Division, who will no doubt be kept well informed about developments in this field, will soon feel able to relax the present requirement so as to limit applications for declarations to those cases in which there is a special need for the procedure to be invoked. Lord Keith said (p 859): The decision whether or not the continued treatment and care of a PVS patient confers any benefit on him is essentially one for the practitioners in charge of his case. The question is whether any decision that it does not and that the treatment and care should therefore be discontinued should as a matter of routine be brought before the Family Division for endorsement or the reverse. The view taken by the President of the Family Division and the Court of Appeal was that it should, at least for the time being and until a body of experience and practice has been built up which might obviate the need for application in every case. As Sir Thomas Bingham MR said, this would be in the interests of the protection of patients, the protection of doctors, the reassurance of the patients families and the reassurance of the public. I respectfully agree that these considerations render desirable the practice of application. Lord Lowry said (p 875): Lord Browne Wilkinson said (p 885): Procedurally I can see no present alternative to an application to the court such as that made in the present case. This view is reinforced for me when I reflect, against the background of your Lordships conclusions of law, that, in the absence of an application, the doctor who proposes the cessation of life supporting care and treatment on the ground that their continuance would not be in the patients best interests will have reached that conclusion himself and will be judge in his own cause unless and until his chosen course of action is challenged in criminal or civil proceedings. A practical alternative may, however, be evolved through the practice of the Family Division and with the help of the Medical Ethics Committee, which has already devoted so much thought to the problem, and possibly of Parliament through legislation. I am very conscious that I have reached my conclusions on narrow, legalistic, grounds which provide no satisfactory basis for the decision of cases which will arise in the future where the facts are not identical. I must again emphasise that this is an extreme case where it can be overwhelmingly proved that the patient is and will remain insensate: he neither feels pain from treatment nor will feel pain in dying and has no prospect of any medical care improving his condition. Unless, as I very much hope, Parliament reviews the law, the courts will be faced with cases where the chances of improvement are slight, or the patient has very slight sensate awareness. I express no view on what should be the answer in such circumstances: my decision does not cover such a case. I therefore consider that, for the foreseeable future, doctors would be well advised in each case to apply to the court for a declaration as to the legality of any proposed discontinuance of life support where there has been no valid consent by or on behalf of the patient to such discontinuance. Lord Mustill did not say anything specifically on the topic, but he spoke of his profound misgivings about almost every aspect of this case (p 899), and, as the comment that I have already quoted above shows, he urged that matters should proceed with the greatest caution. The practice of seeking declarations as to the lawfulness of medical treatment became firmly established in the years after In re F and the Bland case, as can be seen from the comment of Hale J, as Baroness Hale then was, in In re S (Hospital Patient: Courts Jurisdiction) [1995] Fam 26, that it has been followed in many cases (p 31E). The next case which needs to be considered is R (Burke) v General Medical Council (Official Solicitor and others intervening) [2006] QB 273. There, the court was called upon to determine issues in relation to a patient who was competent but suffering from a congenital degenerative brain condition. In contrast to the Bland case, the litigation was not brought in order to obtain the courts sanction for treatment being withdrawn, but in order to ensure that it would not be withdrawn. Nevertheless, the decision covers ground which is of relevance to the present issue. The patient wished to ensure that the artificial nutrition and hydration that he would need as his degenerative condition progressed would not be withheld by the medical practitioners responsible for his care. He sought judicial review of the General Medical Councils 2002 guidance, Withholding and Withdrawing Life prolonging Treatments: Good Practice in Decision making, on the basis that it was incompatible with his rights at common law and under the ECHR in, inter alia, failing to spell out a legal requirement to obtain prior judicial sanction for the withdrawal of artificial nutrition and hydration. The Court of Appeal considered the principles applicable in such circumstances and found the guidance compatible with them. Giving the judgment of the court, the Master of the Rolls, Lord Phillips of Worth Matravers, considered whether there was in fact a legal requirement to obtain court authorisation before withdrawing artificial nutrition and hydration, as Munby J had determined that there was, in certain circumstances. The Court of Appeal did not agree that such a requirement existed. Summarising the legal position, the Master of the Rolls said (para 71): We asked Mr Gordon to explain the nature of the duty to seek the authorisation of the court and he was not able to give us a coherent explanation. So far as the criminal law is concerned, the court has no power to authorise that which would otherwise be unlawful: see, for instance, the observation of Lord Lowry in Blands case [1993] AC 789, 875H. Nor can the court render unlawful that which would otherwise be lawful. The same is true in relation to a possible infringement of civil law. In Blands case the House of Lords recommended that, as a matter of good practice, reference should be made to the Family Court before withdrawing ANH from a patient in a PVS, until a body of experience and practice had built up. Plainly there will be occasions in which it will be advisable for a doctor to seek the courts approval before withdrawing ANH in other circumstances, but what justification is there for postulating that he will be under a legal duty so to do? [Original emphasis] Having considered, but rejected, the possibility that the Human Rights Act 1998 and the decision of the European Court of Human Rights (the ECtHR) in Glass v United Kingdom [2004] 1 FLR 1019 had converted what was only a requirement of good practice into a legal requirement, the court said (para 80): The true position is that the court does not authorise treatment that would otherwise be unlawful. The court makes a declaration as to whether or not proposed treatment, or the withdrawal of treatment, will be lawful. Good practice may require medical practitioners to seek such a declaration where the legality of proposed treatment is in doubt. This is not, however, something that they are required to do as a matter of law. Mr Burke made a complaint to the ECtHR under articles 2, 3, 8 and 14 of the ECHR (Burke v United Kingdom (Application No 19807/0) 11 July 2006). It was rejected as manifestly ill founded. The ECtHR expressed itself satisfied that the presumption of domestic law is strongly in favour of prolonging life where possible, which accords with the spirit of the Convention (p 8 of the decision). Dealing specifically with the argument that there was insufficient protection for someone in Mr Burkes position, because a doctor might reach a decision to withdraw artificial nutrition and hydration without being obliged to obtain approval from the court, the court saw no problem with a process which involved taking into account the patients previously expressed wishes and those of people close to him, and the opinions of medical personnel, and approaching a court only if there was any conflict or doubt as to the applicants best interests. It appears to have been content to endorse what the Court of Appeal said: the Court would refer to the Court of Appeals explanation that the courts do not as such authorise medical actions but merely declare whether a proposed action is lawful. A doctor, fully subject to the sanctions of criminal and civil law, is only therefore recommended to obtain legal advice, in addition to proper supporting medical opinion, where a step is controversial in some way. Any more stringent legal duty would be prescriptively burdensome doctors, and emergency ward staff in particular, would be constantly in court and would not necessarily entail any greater protection. The Mental Capacity Act 2005 Since 2007, the MCA 2005 has been the statutory context within which treatment decisions are taken in relation to those who lack capacity, essentially without input from the court, but with the possibility of an application being made to court should the case require it. It may be helpful briefly to review the main provisions of the Act which are relevant to the present issue, dealing first with provisions of general application and then coming, in para 39, to the provisions dealing with the courts involvement and, in para 40, to the provision requiring the Lord Chancellor to issue codes of practice. I start with two provisions which place the best interests of the person who lacks capacity at the heart of the process. Section 1(5) provides that an act done, or a decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. Section 4 sets out how someone determining, for the purposes of the Act, what is in a persons best interests must go about the task. All the relevant circumstances must be considered, and the steps listed in the section must be taken. They include considering, so far as reasonably ascertainable, the persons wishes and feelings, and the beliefs and values that would be likely to influence his decision if he had capacity, as well as the other factors that he would be likely to consider if he were able to do so. Also to be taken into account are the views of various specified people who have some responsibility for or are interested in his welfare. There is a specific subsection, section 4(5), dealing with a determination that relates to life saving treatment; it provides that in such cases, in considering whether the treatment is in the best interests of the person concerned, the person making the determination must not be motivated by a desire to bring about his death. Section 5 allows carers, including health professionals, to carry out acts in connection with personal care, health care, or treatment of a person who lacks capacity to consent. It provides a significant degree of protection from liability, provided that the act is done in the reasonable belief that capacity is lacking and that the act is in the patients best interests. If these conditions are satisfied, no more liability is incurred than would have been incurred if the patient had had capacity to consent and had done so. There are provisions of the Act which enable someone to cater in advance for the possibility that he or she will, in future, lose the capacity to make decisions about his or her own welfare. One such provision is section 9 which deals with lasting powers of attorney, under which the donor gives the donee authority to make decisions about the donors personal welfare. Such a power of attorney is subject to the restrictions in section 11(7), and thus subject to sections 24 to 26 of the Act (see immediately below). Although it will normally extend to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the donor, section 11(8) provides that it will not authorise the giving or refusing of consent to the carrying out or continuation of life sustaining treatment, unless the instrument contains express provision to that effect. Sections 24 to 26 deal specifically with advance decisions to refuse treatment. They enable an adult with capacity to decide in advance that if he later lacks capacity to consent to the carrying out or continuation of a specified health care treatment, that treatment is not to be carried out or continued. Such an advance decision applies to life sustaining treatment only if the decision is verified by a statement from the person concerned that it is to apply even if his life is at risk, and the decision complies with certain formalities set out in section 25(6), which essentially requires it to be written, signed and witnessed. Section 37 makes provision for a situation in which an NHS body is proposing to provide serious medical treatment for a person who lacks capacity to consent to it and there is no one, other than those engaged in providing care or treatment for the person in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in the persons best interests. Serious medical treatment means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority, which in practice will relate to situations in which a finely balanced decision has to be taken or what is proposed would be likely to involve serious consequences for the patient. Before providing the treatment, the NHS body must instruct an independent mental capacity advocate (referred to as an IMCA) to represent the person, although treatment which is urgently needed can be provided even though it has not been possible to appoint an IMCA. In providing treatment, the NHS body has to take into account information provided or submissions made by the IMCA. The provisions of sections 15 to 17 of the Act give the court power to make decisions about personal welfare and to make declarations and orders in respect of a person who lacks capacity. Section 15 deals with declarations, including declarations as to the lawfulness or otherwise of any act which has been or is to be done. Section 16 enables the court, by making an order, to make personal welfare decisions for a person without capacity, and, by section 17, the courts power in this regard extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the patient. Section 16(3) makes it clear that the courts powers under section 16 are subject to the provisions of the Act and, in particular, to section 1 and to section 4. What governs the courts decision about any matter concerning the patients personal welfare is therefore the patients best interests. Section 42 provides for the Lord Chancellor to prepare and issue codes of practice on various subjects. Before preparing a code, the Lord Chancellor has duties to consult, and a code may not be issued unless it has been laid before both Houses of Parliament in accordance with section 43(2). Section 42(4) imposes a duty on someone acting in a professional capacity in relation to a person who lacks capacity to have regard to any relevant code. Section 42(5) provides that if it appears to a court conducting any criminal or civil proceedings that a provision of a code, or a failure to comply with a code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question. Before leaving this overview of the provisions of the 2005 Act, it is worth noting a provision which is not to be found amongst them. The Law Commission had recommended (see Law Commission Report No 231 on Mental Incapacity, published in 1995, particularly para 6.21) that the new statute should provide that the discontinuance of artificial sustenance to an unconscious patient with no activity in the cerebral cortex and no prospect of recovery should in every case require the prior approval of the court, unless an attorney or court appointed manager had express authority to make the decision, albeit that flexibility for the future was to be incorporated by providing that the Secretary of State could, by order, replace the need for court approval with a requirement for a certificate from an independent medical practitioner duly appointed for that purpose. As the Explanatory Notes to the 2005 Act state, the Act has its basis in the Law Commission Report. However, it does not seem to have been thought appropriate to include in it a requirement of court approval. In a note provided by counsel for the appellant, it is suggested that the reason for this was that the government concluded that, rather than creating inflexible legal rules, the better course would be for the courts to continue to decide which cases should have their prior sanction, with the situations in which that was the case being set out in a code of practice (see Baroness Ashton of Uphollands statement during the debate on the Bill in the House of Lords, Hansard (HL Debates) 25 January 2005, vol 668, col 1243). Mental Capacity Act 2005 Code of Practice The Mental Capacity Act 2005 Code of Practice (the Code), issued under section 42 of the MCA 2005, came into effect in April 2007. Chapter 5 of the Code has a section entitled How should someones best interests be worked out when making decisions about life sustaining treatment? It includes the following: 5.31 All reasonable steps which are in the persons best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life sustaining treatment, even if this may result in the persons death. The decision maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the persons death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life sustaining treatment. 5.33 Doctors must apply the best interests checklist and use their professional skills to decide whether life sustaining treatment is in the persons best interests. If the doctors assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the persons best interests. 5.36 As mentioned in para 5.33 above, where there is any doubt about the patients best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life sustaining treatment is in the patients best interests. Chapter 6 of the Code is entitled What protection does the Act offer for people providing care or treatment? Healthcare and treatment decisions are dealt with from paras 6.15 to 6.19. Para 6.16 says that major healthcare and treatment decisions, such as major surgery or a decision that no attempt is to be made to resuscitate a patient, need special consideration. Health care staff are directed to work out carefully what would be in the persons best interests, taking into account the views of people in various categories, and involving an IMCA where no one else is available to consult. Para 6.17 commends multi disciplinary meetings as often the best way to decide on a persons best interests. They bring together healthcare and social care staff to discuss the persons options and may involve those who are closest to the person concerned. However, the paragraph stresses that final responsibility for deciding what is in the best interests of the person lies with the member of healthcare staff responsible for the persons treatment, who should record their decision, how they reached it, and the reasons for it, in the patients clinical notes. As long as they have recorded objective reasons to show that the decision is in the persons best interests, and the other requirements of section 5 of the Act are met, all healthcare staff taking actions in connection with the particular treatment will be protected from liability. Para 6.18 then goes on to single out certain treatment decisions in the following terms: 6.18 Some treatment decisions are so serious that the court has to make them unless the person has previously made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them (see chapter 7) or they have made a valid advance decision to refuse the proposed treatment (see chapter 9). The Court of Protection must be asked to make decisions relating to:20 the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS) cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person the proposed non therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes) cases where there is a dispute about whether a particular treatment will be in a persons best interests. See paragraphs 8.18 8.24 for more details on these types of cases. Footnote 20 to para 6.18 refers to procedures resulting from those court judgments but the court judgments in question are not named. Para 6.19 develops matters a little: Chapter 8 of the Code deals with the role of the Court of Protection. Commencing at para 8.18, there is a section headed Serious healthcare and treatment decisions. Paras 8.18 and 8.19 read: 6.19 This last category may include cases that introduce ethical dilemmas concerning untested or innovative treatments where it is not known if the treatment will be effective, or certain cases involving a termination of pregnancy. It may also include cases where there is conflict between professionals or between professionals and family members which cannot be resolved in any other way. Where there is conflict, it is advisable for parties to get legal advice, though they may not necessarily be able to get legal aid to pay for this advice. Chapter 8 gives more information about the need to refer cases to court for a decision. 8.18 Prior to the Act coming into force, the courts decided that some decisions relating to the provision of medical treatment were so serious that in each case, an application should be made to the court for a declaration that the proposed action was lawful before that action was taken. Cases involving any of the following decisions should therefore be brought before a court: decisions about the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS) cases involving organ or bone marrow donation by a person who lacks capacity to consent cases involving the proposed non therapeutic sterilisation of a person who lacks capacity to consent to this (eg for contraceptive purposes) and all other cases where there is a doubt or dispute about whether a particular treatment will be in a persons best interests. 8.19 The case law requirement to seek a declaration in cases involving the withholding or withdrawing of artificial nutrition and hydration to people in a permanent vegetative state is unaffected by the Act30 and as a matter of practice, these cases should be put to the Court of Protection for approval. Footnote 30 refers to the Bland case. Just to complete the picture, para 15.36 says that [t]here are some decisions that are so serious that the court should always make them and refers the reader back to chapter 8 for more information about that type of case. It will be noted that the Code of Practice does not seem to be entirely consistent in its approach to involving the court in serious treatment decisions, chapter 6 asserting that the Court of Protection must be asked to make certain decisions, and chapter 8 that certain decisions should be brought before a court. It will be necessary to return to this later. Court of Protection Rules and Practice Directions Court of Protection Rules are made by the President of the Family Division (who is the President of the Court of Protection), in exercise of powers conferred by the MCA 2005. Assistance is provided by an ad hoc Rules Committee which is chaired by the Vice President of the Court of Protection, and includes judges of the Court of Protection, experienced solicitors and barristers, representatives of local authorities, court staff and the Official Solicitor. The first set of rules were the Court of Protection Rules 2007 (SI 2007/1744). They were replaced by the Court of Protection Rules 2017 (SI 2017/1035) which came into force on 1 December 2017. Both sets of Rules have been supplemented by Practice Directions. The Court of Protection Rules 2007 were accompanied by Practice Direction 9E. This was entitled Applications relating to serious medical treatment and set out the procedure to be followed where the application concerned serious medical treatment. Para 5 of the Practice Direction said that cases involving decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state should be regarded as serious medical treatment for the purposes of the Rules and this Practice Direction, and should be brought to the court. When the 2017 Rules replaced the 2007 Rules, this provision was revoked and no equivalent provision was introduced. As to the reasoning for this change, some insight is provided by the notes of a meeting in July 2017 of the ad hoc Court of Protection Rules Committee, which are headed Further Note: Serious Medical Treatment Practice Directions 9E and12A (28 July 2017). The notes state (para 7) that no final recommendation was formulated by the committee. However, it is recorded (para 4) that it had been concluded that Practice Direction 9E should not have included provisions as to what cases should be brought to court, since a practice direction cannot properly direct when an application should be made, and that accordingly any new practice direction should not include any equivalent provision. The final paragraph records that Charles J, as the chairman of the committee, would recommend and so instruct work to be done to remove and not replace Practice Direction 9E. It appears that the committee had considered, but not generally favoured, a practice direction which took a different approach, for example recording what had been said in the decided cases. It was, however, common ground that the British Medical Association, the Law Society, the Ministry of Justice and the Department of Health (the reference, in the conclusions and recommendations section of the note, to the Ministry of Defence must be a mistake) would create a working group to address the underlying issues and the giving of guidance which would take account of developing authority and so would consider how the guidance produced could be readily updated. The case law: domestic decisions after MCA 2005 Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591 was the first case to come before the Supreme Court under the MCA 2005. It concerned a patient with multiple medical problems, who had a very limited level of awareness and lacked capacity to make decisions concerning his medical treatment. The hospital Trust applied for a declaration, under section 15 of the MCA 2005, that it would be lawful, as being in the patients best interests, for three particular life preserving treatments to be withheld if his condition got worse. The family did not agree with the withdrawal of treatment and, at first instance, Peter Jackson J refused to grant the declaration. By the time of the Trusts appeal to the Court of Appeal, the patient had suffered a dramatic deterioration; he was completely dependent on mechanical ventilation and was comatose or semi comatose. The Court of Appeal allowed the appeal and granted the declaration. The patient subsequently died, following a cardiac arrest, but the Supreme Court nonetheless heard his widows appeal, which gave rise to questions concerning the proper approach to the assessment of a patients best interests in the post MCA 2005 era. The appeal was dismissed, although Peter Jackson Js approach to determining the patients best interests was preferred to that of the Court of Appeal. Baroness Hale gave a judgment with which the other justices all agreed. She restated, now with reference to the provisions of the MCA 2005, the position as to invasive medical treatment of a patient. Although going over ground covered in the pre MCA 2005 cases, it is worth setting out the relevant passages in full, since they establish the up to date legal context for the questions that arise in the present appeal. She said: 19. Generally it is the patients consent which makes invasive medical treatment lawful. It is not lawful to treat a patient who has capacity and refuses that treatment. Nor is it lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it: see the 2005 Act, sections 24 to 26. Nor is it lawful to treat such a patient if he has granted a lasting power of attorney (under section 10) or the court has appointed a deputy (under section 16) with the power to give or withhold consent to that treatment and that consent is withheld; but an attorney only has power to give or withhold consent to the carrying out or continuation of life sustaining treatment if the instrument expressly so provides (section 11(8)) and a deputy cannot refuse consent to such treatment: section 20(5). 20. Those cases aside, it was recognised by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 that where a patient is unable to consent to treatment it is lawful to give her treatment which is necessary in her best interests. Section 5 of the Mental Capacity Act 2005 now provides a general defence for acts done in connection with the care or treatment of a person, provided that the actor has first taken reasonable steps to establish whether the person concerned lacks capacity in relation to the matter in question and reasonably believes both that the person lacks capacity and that it will be in his best interests for the act to be done. However, section 5 does not expressly refer both to acts and to omissions, the giving or withholding of treatment. The reason for this, in my view, is that the fundamental question is whether it is lawful to give the treatment, not whether it is lawful to withhold it. Baroness Hale underlined further, in para 22, that the focus is on whether it is in the patients best interests to give the treatment, rather than whether it is in his best interests to withhold it or withdraw it. She continued: If the treatment is not in [the patients] best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it. The court did not have to consider the issue that now falls for determination. However, it is worth noting that Baroness Hale spoke in approving terms, in para 47, of the sensible advice given by the General Medical Council in their guidance on Treatment and care towards the end of life: Good practice in decision making (see below) and said that nothing in her judgment was inconsistent with it. In re Briggs (Incapacitated Person) [2018] Fam 63 concerned a man in a minimally conscious state. His wife brought proceedings under section 21A of the MCA 2005 (as inserted by paragraph 9 of Schedule 2 to the Mental Health Act 2007) seeking a determination that it was not in her husbands best interests to continue to be given the CANH that he needed to survive. By virtue of having applied under section 21A, the wife was entitled to non means tested legal aid. It was contended, against her, that the issue of her husbands treatment could not be raised under section 21A (which deals with the courts powers in relation to the authorisation of deprivation of liberty) and that the application should have been brought under other provisions of the Act, which would have resulted in only means tested funding being available. The question for the court was therefore whether section 21A was broad enough to cover the treatment application. The Court of Appeal held that it did not provide a route for determining questions in relation to medical treatment where, as in that case, the deprivation of liberty itself was not the real or essential issue before the court. An application for a welfare order under section 16 of the Act should have been made. In the course of the judgment, King LJ (with whom both other members of the court agreed, Sir Brian Leveson P adding a few words of his own) made some observations about the issue that now concerns this court. Although obiter, they are still valuable, not least for their insight into what happens in practice. At the time, Practice Direction 9E remained in force, and King LJ observed, at para 24, that at first glance there seemed to be a tension between the practice direction, which appeared to say that all cases of withholding or withdrawing treatment in relation to a minimally conscious person should be brought before the court, and the Code which said that matters should be brought before the court where there was a doubt as to the persons best interests. Because the Code was a statutory code to which the MCA 2005 made it mandatory to have regard, she said that the Code must take precedence and then continued: 26. In reality virtually all of these traumatic decisions are made by agreement between the families and the treating teams of the person involved. To suggest that every case should go before a judge (even where all concerned are in accord as to what was in the best interests of the patient) would not only be an unnecessary pressure on the overstretched resources of the NHS trusts and add to the burden on the courts but, most importantly, would greatly add to the strain on the families having to face these unimaginably distressing decisions. In my judgment, the practice direction provides valuable procedural guidance but should not be interpreted as introducing a requirement that all cases where a decision is to be made about the withdrawal of CANH must come before a court. Having rejected the argument that medical treatment decisions could be taken, in a case such as that which the court was considering, under section 21A of the MCA 2005, King LJ set out in para 108 what, in her view, was the proper approach to a medical treatment case. In so far as relevant to the present appeal, she said: (i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in Ps best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 of the MCA. (ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15 to 17 of the MCA. In similar vein, Sir Brian Leveson P said, at para 114, that [i]f agreement between the authorities and the family is possible, litigation will not be necessary. Finally, in terms of the post MCA 2005 domestic case law, I would refer to two decisions of the Court of Protection. It is important to do so, because judges of the Family Division, who sit also in the Court of Protection, deal regularly with the very difficult welfare decisions which have to be taken as people approach the end of their lives, and this experience gives weight to their views. In In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2011] EWHC 2443 (Fam); [2012] 1 WLR 1653, a case concerning a woman in a minimally conscious state, Baker J expressed the view (paras 78, 82 and 257) that all decisions about the proposed withholding or withdrawal of ANH from a person in a persistent vegetative state or minimally conscious state should always be brought to the court. By this, it can be seen from para 257 that he meant that such decisions must be referred to court. He considered that the legal position has been clear since the decision in the Bland case and, in so far as there was any difference between the Code (which might have suggested that applications to court were not necessary unless the doctors assessment of the patients best interests was disputed) and the position set out in Practice Direction 9E, it was the Practice Direction which reflected the law. Our attention was invited to a fairly recent paper entitled A matter of life and death (2017) 43 J Med Ethics 427 written by Baker J from which it appears that, at least up to that point, he continued to be of the view that he expressed in In re M. He acknowledged that the time may come when applications to court were only necessary where there was a dispute, but did not believe that time had yet been reached. In his view, at p 434, medical science and the law were still evolving and until such time as there was greater clarity and understanding about the disorders of consciousness, and about the legal and ethical principles to be applied, there remains a need for independent oversight, and applications to the court should continue to be obligatory in all cases where withdrawal of ANH is proposed. He did, however, identify an urgent need for a more streamlined procedure for court resolution, avoiding undue cost and delay. In In re M (Incapacitated Person: Withdrawal of Treatment) [2017] EWCOP 18; [2018] 1 WLR 465, the court was concerned with the withdrawal of CANH from a woman who was suffering from Huntingtons disease and was in a minimally conscious state. Her family, her clinicians, and a specialist from whom a second opinion had been sought, were agreed that it was in her best interests not to continue with treatment, notwithstanding that that would result in her death, and a declaration was made to that effect. Peter Jackson J responded to a request from the parties for clarification as to whether legal proceedings were, in fact, necessary prior to withholding or withdrawing CANH when an incapacitated persons family and clinicians agreed that CANH was no longer in the persons best interests. At the time he decided the case, Practice Direction 9E (which had been influential in Baker Js decision) was still effective, but his view differed from Baker Js. Notwithstanding the provisions of the Practice Direction, he held (paras 37 and 38) that, on the facts with which he was dealing, the decision about what was in Ms best interests could lawfully have been taken by her treating doctors, having fully consulted her family and having acted in accordance with the MCA 2005 and with recognised medical standards, without reference to the court. He pointed out that there was no statutory obligation to bring the case to court and gave his view that none of the cases and materials cited in his judgment sustained the proposition that a court decision was necessary as a matter of law rather than of practice. He did not consider that article 2 of the ECHR mandated court oversight, taking the view that the approach taken in Ms case fully respected her article 2 rights in a fashion contemplated in Lambert v France (2016) 62 EHRR 2. He drew attention to the fact that, overwhelmingly, treatment decisions up to and including the withholding of life support are taken by clinicians and families working together in accordance with good practice, with no suggestion of mandatory court involvement, and expressed the view that it was anomalous to require it for a limited subset of cases (those involving PVS or MCS) which were not sufficiently different to justify different treatment. Identifying another anomaly, he also observed that there was no suggestion that the court should be involved where there was a valid and applicable advance decision, yet the grave consequences of the decision and the risk of error were no different in such cases from cases where there was no advance decision. He also referred to the deterrent effect of costly and time consuming proceedings, both on the individual case and on the patient population in general. He considered that a mandatory litigation requirement may deflect clinicians and families from making true best interests decisions and in some cases lead to inappropriate treatment continuing by default. He gave Ms case as an example, in that she continued to receive CANH that neither her doctors nor her family thought in her best interests for almost a year until a court decision was eventually sought. He made quite clear, however, that the court is always available where there is disagreement, or where it is felt for some other reason that an application should be made, although this would only arise in rare cases. Strasbourg jurisprudence Since Mr Gordon relies upon the ECHR as one foundation for his argument that there is a requirement to apply to court for a declaration in every case, it is important to look at the case law of the ECtHR on the subject. I have already referred to the case of Burke in 2006. The case of Lambert v France (2016) 62 EHRR 2 is also very much in point, although it received only a passing mention in the appellants written case. If there were any doubt as to its significance, in Gard v United Kingdom (2017) 65 EHRR SE9, the ECtHR described it as its landmark Grand Chamber case Lambert (para 79). Lambert concerned a man, VL, who had sustained serious head injuries, rendering him tetraplegic and completely dependent. He had irreversible brain damage and was receiving artificial nutrition and hydration. Through the collective procedure established in France by the Public Health Code as amended by the Act of 22 April 2005 on patients rights and end of life issues (the Public Health Code), a decision was taken by Dr K to withdraw nutrition and hydration. VLs wife, and ultimately also his parents, a half brother and a sister, were involved in the decision making process. His parents, half brother and sister opposed the withdrawal of nutrition and hydration, and there was considerable litigation in France. This culminated in the Conseil dtat. Furnished with an expert medical report which concluded that VL was in a vegetative state, and after considering observations on the Public Health Code from a number of amici curiae, the Conseil held that Dr Ks decision was not unlawful. The parents, half brother and sister made an application to the ECtHR, arguing that there was a violation of (inter alia) articles 2 and 8 of the ECHR. By a majority, the court found that there was no violation of article 2, and that there was no need for a separate ruling on article 8. In its judgment, it referred back to its previous decisions in Glass (2003) 37 EHRR CD66 and Burke v United Kingdom (Application No 19807/0) (supra), observing at para 143 that: in addressing the question of the administering or withdrawal of medical treatment [in those cases], it took into account the following factors: the existence in domestic law and practice of a regulatory framework compatible with the requirements of article 2; whether account had been taken of the applicants previously expressed wishes and those of the persons close to him, as well as the opinions of other medical personnel; and the possibility to approach the courts in the event of doubts as to the best decision to take in the patients interests. These factors were relevant to its decision about VL (and were set out again subsequently in para 80 of Gard), as well as the criteria laid down in the Council of Europes Guide on the decision making process regarding medical treatment in end of life situations. The Guide had been drawn up in the course of work on patients rights and with the intention of facilitating the implementation of the Oviedo Convention on Human Rights and Biomedicine (see para 59 of Lambert), which has been ratified by 29 of the Council of Europe member states, but not the United Kingdom. The ECtHR observed (para 165) that the comparative law materials available to it showed that, in those countries which authorise the withdrawal of treatment, and where the patient has not given any advance directive, there is a great variety of arrangements governing the taking of the final decision to withdraw treatment. The most common situation was that the final decision was taken by the doctor treating the patient, but it could be taken jointly by the doctor and the family, by the family or legal representative, or (as it is put in para 75) even the courts. The ECtHR determined that the French legal provisions, as interpreted by the Conseil dtat, constituted a legal framework which was sufficiently clear to regulate with precision the decisions taken by doctors in situations such as VLs, and which ensured protection of patients lives. It is worth looking in a little detail at what was required by French law at the relevant time. By the Public Health Code (including the Code of Medical Ethics which is part of it), the decision to limit or withdraw treatment of a person who is unable to express his or her wishes is taken by the doctor in charge of the patient, after the implementation of a collective procedure. The circumstances in which such a decision can be taken are set out in article R.4127 37 para I of the Public Health Code. I have included the provision in both French and English in order that the reference to unreasonable obstinacy in the English translation might be better understood; the ECtHR explains it in para 53 as continuing treatment to unreasonable lengths. En toutes circonstances, le mdecin doit sefforcer de soulager les souffrances du malade par des moyens appropris son tat et lassister moralement. Il doit sabstenir de toute obstination draisonnable dans les investigations ou la thrapeutique et peut renoncer entreprendre ou poursuivre des traitements qui apparaissent inutiles, disproportionns ou qui nont dautre objet ou effet que le maintien artificiel de la vie. The doctor shall at all times endeavour to alleviate suffering by the means most appropriate to the patients condition, and provide moral support. He or she shall refrain from any unreasonable obstinacy in carrying out examinations or treatment and may decide to withhold or discontinue treatment which appears futile or disproportionate or the only purpose or effect of which is to sustain life artificially. Before taking the decision, the doctor is required to consult with the care team where there is one, and there has to be a reasoned opinion of at least one doctor acting as an independent consultant. The decision has to take into account any wishes previously expressed by the patient, in particular in the form of advance directives, the views of any person of trust that the patient may have designated and of the family or, failing this, of another person close to the patient. Reasons have to be given for any decision to limit or withdraw treatment, and the position has to be documented in the patients file. Whilst the matter had, in VLs case, been litigated in the courts, demonstrating that recourse could be had to court if necessary, court approval was not required by the French provisions. Although the applicants did not advance any argument that this rendered the system unsatisfactory for the purposes of article 2, they did complain about the decision making process on other grounds, considering that the decision should have been a genuinely collective one or, at the very least, provision should have been made for mediation in the event of disagreement. This complaint led the court to consider what obligations there were concerning the decision making process. Rejecting the complaint, it said (para 168) that the organisation of the decision making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the states margin of appreciation. The French process (as amended, although not substantially, in 2016) once more withstood scrutiny by the ECtHR in January 2018 in Afiri and Biddarri v France (Application No 1828/18) 23 January 2018. The court again re iterated the elements set out in para 143 of Lambert (supra) and repeated the observations it had there made (para 168) about the organisation of the decision making process. Other guidance Various medical bodies in the UK have produced codes relating to the withdrawal of life sustaining treatment. In chronological order, they are: i) The BMAs Withholding and Withdrawing Life Prolonging Medical Treatment: Guidance for decision making (first published in 1999, 3rd ed 2007) ii) The GMCs Treatment and care towards the end of life: good practice in decision making (published May 2010) iii) The report of the Royal College of Physicians (the RCP) entitled Prolonged disorders of consciousness: National clinical guidelines (the report of a working party in 2013) iv) An Interim Guidance document produced in December 2017 by the GMC, BMA and RCP entitled Decisions to withdraw clinically assisted nutrition and hydration (CANH) from patients in permanent vegetative state (PVS) or minimally conscious state (MCS) following sudden onset profound brain injury. The last document referred to in the previous paragraph was published after the decisions at first instance in the present case, the Court of Appeals decision in Briggs, and Peter Jackson Js decision in In re M. It was not meant to override the existing guidance from each of the three bodies, but to supplement it, responding to the statements in those cases that there is no requirement for treating clinicians to seek court approval to withdrawing CANH, and to the withdrawal of Practice Direction 9E. It summarises the recent developments in the law, and also the views of the GMC, BMA, and RCP about good clinical and professional practice in the area. It is intended that before long it will be replaced with a new final guidance, which (the introduction to the Interim Guidance says) will recommend safeguards to ensure that a robust and thorough assessment process continues to be followed prior to the withdrawal of CANH. It is necessary to look in more detail at this body of professional guidance since it has a very important part to play in ensuring the proper protection of patients and in maintaining the confidence of the public in the health care system. Whatever impression might be conveyed by terms such as guidance and guidelines, the practice set out in the various documents has significant weight. This is perhaps particularly so in relation to guidance emanating from the GMC, which has a special role in providing guidance for the medical profession. It was established by statute, the Medical Act 1983, with the over arching objective of protecting the public, and is charged with setting and maintaining the standards that doctors across the UK must follow, where necessary taking action in relation to a doctor if he or she is found to be falling below the required standard. Its statutory powers under the Medical Act include power to issue advice for members of the medical profession on standards of professional conduct, standards of professional performance and medical ethics (section 35). The GMCs 2010 guide to good practice draws upon the domestic and European jurisprudence and covers the matters that one would therefore expect. I will not rehearse all those matters here, particularly given that guidance is continuing to evolve, and will simply give a broad indication of the nature and ambit of the document. It provides the doctor with a decision making model, applicable where an adult lacks the capacity to decide about treatment and care. As part of the decision making process, the doctor is to: find out about any valid advance decision made by the patient or consider what treatments are clinically appropriate and likely to i) make an assessment of the patients condition, ii) benefit the patient, iii) anyone who has legal authority to decide for him, iv) as far as practical and appropriate, consult members of the healthcare team and those close to the patient and, when deciding about treatment, take their views into account, v) take steps towards the appointment of an IMCA where appropriate, vi) attempt to resolve disagreements about what treatment and care would be of overall benefit to the patient, seeking legal advice on applying to court for an independent ruling if agreement is not reached. The guide requires a record to be made of decisions about treatment, and of who was consulted in relation to the decisions. There is a section specifically addressing CANH, particularly stressing the need to listen to and consider the views of the patient and those close to them, and to explain the issues to be considered. The doctor is alerted to the need, in the event of disagreement about CANH, to ensure that the patient or someone acting on their behalf is advised on how to access their own legal advice or representation. Where the patient is not expected to die in any event in hours or days, but the doctor judges that CANH would not be of overall benefit to him, all reasonable steps must be taken to get a second opinion from a senior clinician who is not already directly involved but who should examine the patient. If that is not practically possible in exceptional circumstances, advice from a colleague must still be sought. As to patients in PVS or a condition closely resembling it, the guide says that the courts require that you approach them for a ruling. This is, however, modified in the Interim Guidance of December 2017 which proceeds upon the basis that there will be cases in which no court application is required. The December 2017 Interim Guidance starts by identifying that a best interests decision cannot be taken for the patient where he has made a valid and applicable advance decision to refuse treatment which covers CANH, or where an attorney appointed under a suitable lasting power of attorney makes the decision. It then goes on to say that where there is disagreement about best interests or the decision is finely balanced, an application should be made to court for a declaration as to whether CANH continues to be in the patients best interests. Then, dealing with the remainder of cases, the guidance sets out the steps that should be taken to ensure that there is proper consultation prior to determining what is in the patients best interests. These include ensuring that the RCP guidelines have been followed regarding assessment, with the assessment carried out by professionals with the appropriate training, that guidance in the Mental Capacity Act Code, and from the BMA, RCP and/or GMC has been followed, that there have been formal, documented best interests meetings with those who care for the patient and are interested in his or her welfare, and that an IMCA is consulted where necessary. The doctor is told to find out as much as possible about the patients values, wishes, feelings and beliefs. A second clinical opinion should be sought from a consultant with experience of PDOC who has not been involved in the patients care and who should, so far as reasonably practical, be external to the NHS Trust/Clinical Commissioning Group (CCG); the consultant should examine the patient and review the medical records and the information that has been collected. There should be very detailed records kept, both a clinical record (covering many specified matters) and a record of discussions, meetings and so on. The RCP document is lengthy, covering the diagnosis and management of patients with PDOC. There is a section devoted to assessment, diagnosis, and monitoring, in which the doctor is alerted to the challenges in making an accurate diagnosis and the need for evaluation by a multi disciplinary team of expert clinicians, with the family and close friends of the patient having a key role, and is told that the diagnostic assessment process should follow a structured approach, elements of which are described in some detail. Another section of the document covers ethical and medico legal issues, also in detail. The BMA guidance is similarly substantial, its aim being to provide a coherent and comprehensive set of principles which apply to all decisions to withhold or withdraw life prolonging treatment (Introduction p xiii). It should be noted that the Faculty of Intensive Care Medicine (FICM) and the Intensive Care Society (ICS) have also issued joint recommendations in the form of Guidelines for the provision of intensive care services; these include recommendations about end of life care. The submissions on behalf of the Official Solicitor Considerations of human dignity and the sanctity of human life are, quite rightly, central to the Official Solicitors case. His submission is that only by requiring judicial scrutiny in every case concerning the withdrawal of CANH from a patient suffering from PDOC can human life and dignity be properly safeguarded. An important part of the protection is, he submits, the oversight of an independent and neutral person such as the Official Solicitor, who can investigate, expose potential disputes, and give the patient a voice in the decision making, and it is court proceedings that enable the Official Solicitor to be involved. Medical guidance on its own is, in his submission, insufficient protection, and so, until other protective mechanisms are devised, the common law and/or the ECHR dictate that an application to court must be made. I do not understand the Official Solicitor to go so far as to submit that In re F (Mental Patient: Sterilisation) and Blands case specifically impose a common law requirement for a court application in every case. His argument is less direct. In his written case, Mr Gordon says that it is abundantly clear from those cases that the House of Lords implicitly accepted the link between the need for common law protection of patients rights and necessary mechanisms (not yet sufficiently advanced) to give full protection of those rights. That, in his submission, is what led them to say that for the time being a declaration should be sought, it being the only suitably protective mechanism so far available. Since, in the Official Solicitors view, the necessary mechanisms have still not been developed, there remains no satisfactory alternative protection for patients. In those circumstances, it is artificial, he submits, to distinguish between a statement of good practice, and what is required by common law, as they are in fact one and the same, necessitating court involvement in every case. The passing of the MCA 2005 has not changed matters, it is submitted, and the common law is not undermined by the absence of an express statutory provision in it requiring court involvement. Indeed it is asserted that, on the contrary, [i]t was clear that Parliament intended that judicial scrutiny of any decision to withdraw CANH should continue for the foreseeable future. In terms of recent support for his position, Mr Gordon seeks to rely upon something that Baroness Hale said in In re N v (An Adult) (Court of Protection: Jurisdiction) [2017] AC 549, para 38. Whereas I intend to address the bulk of the Official Solicitors submissions later, this one can be dealt with straight away. I did not include In re N v (An Adult) (Court of Protection: Jurisdiction) in my rsum of the authorities as it is not on the point which requires determination here. The issue related to the powers of the Court of Protection where a public body, the local commissioning group, refused to provide or fund a care package for an incapacitated adult which his parents thought would be in his best interests. At para 38, introducing her discussion of that very different issue, Baroness Hale said: Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in Ps best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court (My italics) It seems to me over ambitious to seek to rely upon the italicised sentence, taken out of context, as support for the existence of the common law requirement for which Mr Gordon contends. Turning to the ECHR, the Official Solicitor seeks to invoke article 2 (right to life), article 6 (right to a fair trial), article 8 (right to respect for private and family life) and article 14 (prohibition of discrimination) as further support for the assertion that court involvement is a necessary component in securing the patients rights. The jurisprudence of the ECtHR makes clear, he says, that if there is doubt as to the medical position or the patients best interests, there must be a real remedy and, in cases such as the present, only a court application will reveal whether there is doubt. Here, without the Official Solicitors full participation in the present proceedings, it was impossible to know whether or not there was any dispute about the medical evidence or about Mr Ys best interests, and as a result Mr Ys article 6 rights were eroded to the point that his article 2 rights were afforded no effective protection. An argument is also advanced in reliance upon article 14, which it is said will be breached because a patient in Mr Ys position unjustifiably has less protection than an adult who has capacity and is terminally ill, the latter having the protection in relation to assisted dying afforded by section 2 of the Suicide Act 1961 (which makes it an offence to do an act capable of encouraging or assisting a suicide). It is important to note some of the special features of PDOC cases which in the Official Solicitors submission necessitate court involvement. He stresses the particular vulnerability of patients with PDOC, the difficulty in assessing the level of a persons consciousness, and the dangers of a wrong diagnosis or a wrong conclusion about what is in the persons best interests. He invites attention to examples of diagnostic errors in the decided cases where, for example, a patient has been thought to be in a permanent vegetative state but found later to be in a minimally conscious state. He submits that, although decisions about withdrawing treatment have to be made in relation both to patients with PDOC, and patients in intensive care with life limiting illnesses or injuries, the two categories of patient are different. The patient with PDOC may be clinically stable and may live for a prolonged period with only appropriate nursing care, hydration and nutrition, whereas the patient in intensive care may require more active medical intervention and support and may face death within hours or days. Furthermore, it is suggested that there is a particular concern about the morality of withdrawing CANH, which many might see as basic care, as opposed to certain other types of treatment. Lord Brandons reasoning at p 56 of In re F (Mental Patient: Sterilisation) (supra) (where he identified a number of special features which made the involvement of the court highly desirable) applies equally to PDOC cases, it is submitted. Similarly in point is Lord Lowrys concern, expressed in the Bland case (supra), that without court oversight, the doctor will be judge in his own cause. In addition, there is a danger, it is said, that the doctor may persuade family members who might not have the resources (emotional or financial) to question the doctors decision. Far from the need for independent scrutiny having diminished since the Bland case, Mr Gordon submits that it has increased as the growing understanding of disorders of consciousness has revealed the shortcomings of the assessments that have to be carried out. Discussion Permeating the determination of the issue that arises in this case must be a full recognition of the value of human life, and of the respect in which it must be held. No life is to be relinquished easily. As Baroness Hale said at para 35 of Aintree University Hospitals NHS Foundation Trust v James (supra): The authorities are all agreed that the starting point is a strong presumption that it is in a persons best interests to stay alive. And yet there may come a time when life has to be relinquished because that is in the best interests of the patient. The situation of Mr Y, and the ordeal through which his family has been going, serve as a solemn reminder of how illness may confront any one of us at any time and of the difficulties that face the patient, his family, and the medical staff whose job it is to do the best that they can for them. As Lord Browne Wilkinson said in Blands case (p 877), the questions for us are questions of law, [b]ut behind the questions of law lie moral, ethical, medical and practical issues of fundamental importance to society. The weight of that consideration anchors the legal decisions which I would make. Before turning to the central questions in the case, it is worth restating the basic position with regard to medical treatment, because it is upon this foundation that everything else is built. Although the concentration is upon the withdrawal of CANH, it must be kept in mind that the fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patients best interests. Accordingly, if the treatment would not be in the patients best interests, then it would be unlawful to give it, and therefore lawful, and not a breach of any duty to the patient, to withhold or withdraw it. For a recent authoritative statement to this effect, see the Aintree case, although I would add that if a doctor carries out treatment in the reasonable belief that it will be in the patients best interests, he or she will be entitled to the protection from liability conferred by section 5 of the MCA 2005 (see para 36 above). It is also important to keep in mind that a patient cannot require a doctor to give any particular form of treatment, and nor can a court (see, for example, R (Burke) v General Medical Council at paras 50 and 55, and the Aintree case at para 18). I turn then to the core issue, commencing with a consideration of what, if any, requirements are imposed by domestic law. This consideration must start with the Bland case. In my view, there can be no question of the House of Lords there having imposed a legal requirement that in all cases of PVS (or any other form of prolonged disorder of consciousness) an application must be made to the court before CANH can be withdrawn. The scene had been set in In re F (Mental Patient: Sterilisation), where consideration was given to whether it was necessary to seek a declaration before carrying out a sterilisation operation on a woman who could not consent to the procedure herself. This was the case in which Lord Brandon set out the six features which made it highly desirable to seek the involvement of the court as a matter of good practice, five of which features the Official Solicitor relies upon in his present argument. That none of their Lordships in In re F considered that they were laying down a common law requirement to apply to the court is put beyond doubt by the speech of Lord Griffiths. It will be recalled that he would have been inclined to make it a legal requirement to seek the sanction of the court in all cases, and thought that the common law could be adapted to do so, but was deterred because the other members of the House considered that this would be making new law and inappropriate. In re F was very much in the minds of their Lordships in the Bland case, as can be seen from their speeches, and the approach they took to the question of court involvement was similar to that taken in In re F. There was no suggestion that the common law was now being developed in the sort of way that Lord Griffiths had eschewed in In re F. It was made quite clear that it was as a matter of practice that guidance should be sought from the court by way of declaratory relief, the practice of applying being desirable. It was contemplated that the President of the Family Division would keep matters under review and it was hoped that he would, in time, be able to limit applications for declarations to cases where there was a special need; this would have been difficult had the House of Lords created a legal requirement of a declaration in every case. The position was underlined in R (Burke) v General Medical Council (supra) where the Court of Appeal expressly rejected the argument that there was a legal duty to seek a declaration from the court before withdrawing artificial nutrition and hydration from a patient in PVS, affirming that the House of Lords in Blands case had recommended as a matter of good practice that reference be made to the court. Mr Gordon submits that the Court of Appeal was not there addressing the same issue as this court must now address, namely the protection of the vulnerable class of patients with PDOC, and that it had only been addressed on the situation of PVS patients in passing. I do not consider that Burkes case can be removed from the picture in this way. It seems to me to be an accurate statement of the legal position and of relevance to the issue before us. Accordingly, when the Mental Capacity Act 2005 came into force in 2007, there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH. Mr Sachdeva, for the respondents, argues that it would be inconsistent with the statutory regime established by Parliament in the MCA 2005 to have such a requirement. The Act makes provision for decisions to be taken on behalf of those who lack capacity, based upon what is in their best interests, without involving a court. By section 5, subject of course to the impact of any relevant lasting power of attorney or advance decision to refuse treatment, a clinician who treats a patient in accordance with what he reasonably believes to be the patients best interests does not incur any liability, in relation to the treatment, that he would not have incurred if the patient had had capacity to consent and had consented to it. Provision is made for the court to make decisions about personal welfare where necessary, but the Act does not single out any sub class of decisions which must always be placed before the court, and there is no requirement for the Official Solicitor to be involved in best interest decisions relating to serious medical treatment. There is an attraction to Mr Sachdevas argument that the MCA 2005 is a complete statutory code but, had there been a common law requirement of court involvement by the time it was passed, I think I might nonetheless have been prepared to accept that it could have survived the silence of the Act on the subject. However, as there was no pre existing common law requirement, the point does not arise for decision. The absence of any requirement in the statute of the type for which the Official Solicitor contends is nevertheless of interest, given the recommendations of the Law Commission Report No 231 which brought it to attention as one of the possible options, and given that the Act is based upon that report. In contrast to the statute itself, the Mental Capacity Act 2005 Code of Practice does speak of applications to court in cases such as the present, but is contradictory in what it says about them. Paras 5.33 and 5.36 speak in terms of an application being made if there is any doubt or dispute about the doctors assessment of the patients best interests. Although para 6.18 suggests that the court has to make/must be asked to make the decision about withholding or withdrawing artificial nutrition and hydration from a patient in PVS, that statement seems to have been derived from the case law, which dealt only in terms of good practice, not of legal obligation. And paras 8.18 and 8.19, to which para 6.18 invites reference, say that an application should be made to the court and that as a matter of practice such cases should be put to the Court of Protection for approval, referring to a case law requirement to seek a declaration, the source of which is given as the Bland case. A Code in these rather ambiguous terms, plainly attempting to convey what the cases have so far decided, cannot extend the duty of the medical team beyond what the cases do in fact decide is incumbent upon them. Whatever the weight given to the Code by section 42 of the MCA 2005, it does not create an obligation as a matter of law to apply to court in every case. Practice Direction 9E which accompanied the Court of Protection Rules 2007 said that decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a persistent vegetative state or a minimally conscious state should be brought to court. It is understandable that the ad hoc Rules Committee decided that, in so far as the practice direction purported to direct which cases had to be brought to court, it went beyond its proper scope; a practice direction cannot establish a legal obligation when none exists already, see U v Liverpool City Council (Practice Note) [2005] 1 WLR 2657, para 48. In any event, as no equivalent practice direction accompanies the Court of Protection Rules 2017, it is not necessary to delve into the matter further. No requirement to apply to court can be found in the post MCA 2005 case law either. The decision of Baker J in In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) does not assist because it proceeded upon the basis that the Bland case had established that all decisions about the proposed withholding or withdrawal of CANH had as a matter of law to be brought to court and I would not interpret the Bland case in this way. The view of King LJ, expressed obiter in the Court of Appeal in In re Briggs [2018], that treating doctors can take a decision without recourse to court where there is no dispute about it should, however, be accorded weight. This is so even allowing for the possibility raised by Mr Gordon that the court may not have had full argument on the subject and may not have been referred to all the relevant passages in the Code, as King LJ spoke only of one of the less prescriptive provisions. It is important to note the views of those who, like her, have long experience in the Family Division where life and death issues are regularly litigated. Peter Jackson Js judgment in In re M (Incapacitated Person: Withdrawal of Treatment) (given after the Court of Appeals decision in the Briggs case) is also of assistance, particularly for the judges analysis of why, in his view, the decision as to what was in Ms best interests could have been taken without reference to the court. Mr Gordon points out that the Official Solicitor was not formally involved in that case and that there was no oral argument on the topic. However, as Peter Jackson J set out in para 30, he did invite and receive a substantial skeleton argument prepared by leading and junior counsel on behalf of the Official Solicitor which, he said, (among other things) trenchantly asserts that an application to court should be made in every case of proposed withdrawal of CANH, unless there is a valid advance directive. There is no doubt, therefore, that Peter Jackson J will have been made aware of the arguments that ran counter to the view he ultimately formed. Mr Gordon advances four respects in which he says the judge went wrong, namely: (1) he failed to recognise that PDOC patients are distinct from other patients, (2) he mistakenly attributed the delay to the proceedings when the majority of it appears to have been caused by other factors, (3) he failed to see that matters are very different when an advance decision has been made pursuant to section 24 of MCA 2005, and (4) he failed to recognise that if there is no requirement for court involvement, the article 2 requirement identified in Lambert v France for regulations compelling hospitals to adopt appropriate measures for the protection of patients lives will not be satisfied. For the most part, these are issues which arise as part of the Official Solicitors argument before this court and the reasons why I do not find them compelling will therefore appear in due course. There being, therefore, in my view, no requirement in domestic law for an application to court of the type that the Official Solicitor says is imperative for the protection of patients, the next question is whether the ECHR generates a need for an equivalent provision to be introduced. To my mind, the answer is a clear no. The first port of call is the landmark Grand Chamber case of Lambert v France on the French collective procedure which, it will be recalled, provided for the doctor to take the decision, with no application to court required, yet satisfied the ECtHR as being sufficiently protective of the articles 2 and 8 rights there engaged. I set out in a little detail earlier (para 71) what the French procedure required and it bears a significant resemblance to the procedure set out in the medical guidance in this country. In each case, the context for the decision is similar in that the French article R.4127 37 para I says that the doctor can decide to withhold or discontinue treatments qui apparaissent inutiles, disproportionns ou qui nont dautre objet ou effet que le maintien artificiel de la vie, and para 5.31 of the Mental Capacity Act Code speaks of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. The French code requires the doctor to consult with the care team, and to take into account any wishes expressed by the patient and the views of people close to him, and the same is required by the MCA 2005 and the medical guidance here. An independent consultants opinion is required in France and should also be sought in this country. The court is available if necessary in France as it is here. As I have said, Lambert v France was not a central feature of the Official Solicitors written case, but as he developed his argument in oral submissions, Mr Gordon sought to distinguish the decision on the basis that France has a formally prescribed procedure with guarantees and we do not. To comply with the ECHR, a system must have a prescribed procedure, he says, and the sort of professional guidance that we have in this country will not suffice. The ECtHR has repeatedly set out certain factors that it considers relevant to the question of administering or withdrawing medical treatment. They can be found in para 143 of Lambert v France (see para 69 above), and also in Glass v United Kingdom, Burke v United Kingdom, Gard v United Kingdom, and Afiri and Biddarri v France. The first of those factors is the existence in domestic law and practice of a regulatory framework compatible with the requirements of article 2, which no doubt is (quite properly) the foundation of Mr Gordons submission that a prescribed procedure is required. Where I differ from Mr Gordon is in his assertion that the system in this country is not what the ECtHR was looking for. True it is that in France there is a comprehensive legislative framework, set out in the Code de la sant publique, whereas the same cannot be said for our domestic law. However, we too have provisions designed to protect the human rights of patients and their families, and I have no difficulty in viewing the combined effect of the MCA 2005, the Mental Capacity Act Code, and the professional guidance, particularly that emanating from the GMC, as a regulatory framework. The basic protective structure is established by the MCA 2005, which I have described above. An advance decision about life sustaining treatment can be taken in accordance with sections 24 to 26 and will be respected. Similarly, a proper role is established for lasting powers of attorney by section 9 and the other sections associated with it. Where the decision is taken by a doctor, section 5 establishes the conditions that must be satisfied if the doctor is to be protected from liability. It directs the focus firmly to the best interests of the patient, and that imports the provisions of section 4 which include taking into account the perspective that the patient would have on the decision if he had capacity and the views of those with an interest in the patients welfare. Section 4(5) imposes the safeguard that the person making the decision must not be motivated by a desire to bring about his death. Section 37 makes provision for an IMCA to represent the patient where appropriate, and sections 15 to 17 ensure that application can be made to court for a decision about the patients welfare where necessary. Notwithstanding the contradictions in it with which I have already dealt, the Code contains valuable guidance, and regard must be had to it by virtue of section 42. The passages that I referred to earlier are only a small fraction of the Code but it will be noted from them that, for example, it commends multi disciplinary meetings when making healthcare and treatment decisions, and speaks about recording decisions and the reasons for them. It also expressly provides (see para 5.31, quoted above) that when making decisions regarding life sustaining treatment, healthcare and social care staff should refer to relevant professional guidance. Given the statutory framework within which the GMC operates, I would single out its guidance to the medical profession as undeniably part of the established regulatory framework. As I have set out above, it has provided its own individual guidance in 2010, and has joined with the BMA and RCP to provide supplementary Interim Guidance in 2017, with final guidance planned for 2018. The second of the factors to which consistent reference has been made by the ECtHR is whether account has been taken of the patients previously expressed wishes and those of people close to him, as well as the opinions of other medical personnel. The MCA 2005 requires this to happen, and is reinforced by the professional guidance available to doctors. The third factor that features consistently in the ECtHRs evaluation is the possibility of approaching the courts in the event of doubts as to the best decision to take in the patients interest and, of course, that possibility exists in this country. As Peter Jackson J said in In re M (Incapacitated Person: Withdrawal of Treatment) at para 38, those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so. The opportunity to involve the court is available whether or not a dispute is apparent, and is of particular benefit where the decision is a finely balanced one. No one would discourage an application in any case where it is felt that the assistance of the court would be valuable. And if a dispute has arisen and cannot be resolved, it must inevitably be put before the court. Mr Gordon characterises Lambert as a case about the facts, which tells us nothing about first principles. He submits, also, that the article 6 argument that he advances was not put to the court in this or any of the other ECtHR cases. This is not how I see the case of Lambert or the ECtHR jurisprudence generally. The Lambert decision forms part of a consistent line of Strasbourg decisions and it tells us, in my view, that the ECtHR does not regard it as problematic, in principle, that a decision to withhold or withdraw CANH from patient with a prolonged disorder of consciousness should be made by a doctor, without obligatory court involvement. If there be any doubt about the implications of this for the present case, reference to Burke v The United Kingdom removes it. The ECtHR was there required to consider our domestic provisions, even before they were bolstered by the MCA 2005, specifically focusing on the GMC guidance then in force. Breaches of articles 2, 3, 8 and 14 were alleged, and it was one of the applicants complaints that the GMC guidance failed to spell out a legal requirement to obtain prior judicial sanction. The ECtHR proceeded upon the basis that article 2 imposes positive obligations on the State to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients lives, yet no suggestion was made that such regulations were lacking in the United Kingdom. The argument that there was insufficient protection because a doctor might decide to withdraw CANH without being under an obligation to obtain the approval of the court was expressly rejected, and I have already cited (see para 33 above) what the ECtHR said in so doing. Recognising the practical realities, it observed that a more stringent legal duty would be prescriptively burdensome, resulting in some medical staff being constantly in court, and would not necessarily entail any greater protection. As for the Official Solicitors article 6 argument, even if that particular argument was not put before the ECtHR in terms, the question of hearing rights was an obvious component in the arguments that were advanced in Burkes case, and there is no reason to suppose that the outcome would have been different if there had been a specific article 6 complaint. The same might be said of Lamberts case, where article 6 was indeed referred to, but only by way of a complaint that the doctor who took the decision was not impartial, not as part of a wider argument that court involvement is required in every case. Moreover, I would accept Mr Sachdevas argument that what engages article 6 is a disagreement or a question of law and/or fact in dispute, and that, in the light of the safeguards to be found in the MCA 2005 and the Code, together with the professional guidance, there is no basis for the Official Solicitors suggested approach of engaging article 6 by assuming in every case that there is a dispute. Of the Official Solicitors ECHR arguments, it only remains to deal with article 14. It is not in point, in the present case, in my view. The analogy that Mr Gordon seeks to draw between someone in Mr Ys position and a person with capacity who seeks assistance in bringing his or her life to an end is not a proper analogy. There is, as Mr Sachdeva says, a critical distinction in both the domestic and the Strasbourg jurisprudence, between an act which constitutes the intentional taking of life and therapeutic abstention from treatment. We are presently dealing with the latter, whereas assisted dying concerns the former. It is worth observing also that an article 14 argument was advanced in Burkes case before the ECtHR and was rejected as manifestly ill founded. The argument was to the effect that the applicant was treated less favourably on account of his disease than others who need CANH but are not suffering from a disease that causes them to lose competence to influence their treatment. The court observed that neither a competent nor an incompetent patient can require a doctor to give treatment that the doctor considers is not clinically justified, thus no difference of treatment arises. In so far as a competent patient is able to participate in the consultation process and an incompetent patient is not, the court said that the patients are not in a relatively similar situation. It remains to stand back from this intense focus upon the law, in order to consider the issue in its wider setting. In so doing, it is necessary to exercise the restraint that is required of a court when it ventures into areas of social and ethical uncertainty, and especially when it does so in the abstract, setting out views which will be of general application (as is necessarily so in this case) rather than resolving a clearly defined issue of law or fact that has arisen between the litigants appearing before it. Lord Goff remarked, in the passage at p 871 of the Bland case which I have set out at para 22 above, upon how frequently doctors have to make decisions which may affect the continued survival of their patients, and how experienced they are in this respect. Judges have also developed experience in dealing with life and death decisions, but it is experience of a different sort from that of the medical team which actually treats the patient, and of the professional bodies responsible for regulating and guiding them, and this limitation must be recognised and taken into account. It has been of particular assistance to have, from the written submissions of the intervenors, an insight into the practicalities of caring for patients who are critically ill, and also some idea of the large number of patients who might be affected in some way by the decision in the instant case. It is important to acknowledge that CANH is more readily perceived as basic care than, say, artificial ventilation or the administration of antibiotics, and withholding or withdrawing it can therefore cause some people a greater unease. However, it was decided as far back as the Bland case that CANH is in fact to be seen as medical treatment. It is not easy to explain, therefore, why it should be treated differently from other forms of life sustaining treatment, and yet that is the consequence of the legal position for which the Official Solicitor contends. Furthermore, the Official Solicitors focus is on only one sub set of patients who are, for one reason or another, unable to take their own decisions about their medical care and in respect of whom life sustaining treatment is under consideration. This is a point that Peter Jackson J made in In re M (Incapacitated Person: Withdrawal of Treatment), and it emerges with some force from the written submissions of the BMA and of the ICS and the FICM. It is not only those, such as Mr Y, who suffer an acute episode and are then stabilised, who may require CANH. The need for it can arise also, for example, in the advanced stages of a degenerative neurological condition such as Huntingtons disease or multiple sclerosis, or in the advanced stages of dementia, where there may be a recognised downward trajectory. Presently, the BMA say, in the case of patients who have suffered a severe stroke, or are significantly cognitively impaired but conscious, or are suffering from a degenerative neurological condition or other condition with a recognised downward trajectory, decisions to withhold or withdraw CANH are made on a regular basis without recourse to the courts. The BMA can see no principled or logical reason for requiring court review in relation to patients with PVS and MCS but not for a patient with a different condition. Similarly, it can find no logical reason why one form of medical treatment, CANH, is treated differently from other forms of medical treatment such as artificial ventilation. The submissions of the ICS and FICM are illuminating as to what occurs in units delivering critical care to patients. Most admissions to such units occur as an emergency, without the patient having made any advance decision about treatment, and possibly already so unwell that he or she has impaired consciousness or is unable to communicate wishes. Most decisions relating to medical treatment in the critical care setting, including as to whether life sustaining treatment is withheld or withdrawn, have to be made without the participation of the patient. They are, we are told, almost invariably taken on the basis of (in England & Wales) best interests and (in Scotland) benefit, on the basis of consensual decision making as between the clinical team and the patients family and carers. In that critical care setting, CANH is not considered differently from any other form of life sustaining treatment. This is said to reflect the reality in critically ill patients that it is the withdrawal of invasive or non invasive ventilation, vasoactive medical and renal replacement therapy, and the double effect from administration of medications to ensure patient comfort towards the end of life, that leads to the natural death of the patient, rather than cessation of CANH. It is likely, where CANH is withdrawn from a patient who is clinically stable but suffering from a prolonged disorder of consciousness, that death will result from the withdrawal of CANH, so to this extent there is a difference between the two groups of patients. However, once CANH is seen as medical treatment, there is a parallel between the cases. In any event, I have difficulty in accepting that there are readily apparent and watertight categories of patient, with PDOC patients clearly differentiated from, say, patients with a degenerative neurological condition or critically ill patients, in such a way as to justify judicial involvement being required for the PDOC patients but not for the others. The dilemmas facing the medical team and those close to the patient may well be very similar in each of these cases. It would be a mistake to think, for example, that the intensive care doctor simply does whatever is necessary to stop the patient dying, no matter what the cost to the patient, any more than does the doctor looking after a PDOC patient or the stroke patient or the patient with Huntingtons disease. In all of these cases, the medical team take their decisions as to treatment, whether it is CANH, or some other form of treatment such as artificial ventilation or cardio pulmonary resuscitation or the administration of antibiotics, by determining what is in the patients best interests. In so doing, the doctors will often have difficult diagnoses to make, reaching a prognosis may be challenging, and the evaluation of the patients best interests may not be entirely straightforward. All these tasks may call for considerable professional skill and individual judgement. Furthermore, although the Official Solicitor submits that it should be possible, with proper case management, to obtain a decision from the court speedily, giving an example of a case which was concluded within eight weeks, I fear that that is an over optimistic view of the situation. I note that even in that case, the delay would have been about six weeks longer had it not been for the parties shortening their time estimate (it would seem in part by removing from it the time for the judge to prepare the judgment) and another case coming out of the judges list. Even allowing for Peter Jackson J to have over estimated the precise period of delay in obtaining an order in In re M (Incapacitated Person: Withdrawal of Treatment), the facts of that case exemplify the dangers. The pressure of business in the courts charged with handling such cases is significant and delays are almost inevitable. As King LJ observed in In re Briggs, quite apart from the pressure that court cases place on the overstretched resources of NHS trusts, they add greatly to the strain on families facing acutely distressing decisions. In a case where all the proper procedures have been observed and there is no doubt about what is in the best interests of the patient, there is much to be said for enabling the family and the patient to spend their last days together without the burden and distraction, and possibly expense, of court proceedings. In addition, I do not disagree with Peter Jackson Js observation that there is a risk that the need to go to court might deflect clinicians and families from making true best interests decisions and might lead in some cases to inappropriate treatment continuing by default. Equally, it is not inconceivable that it might, as the BMA suggest, generate a reluctance, in some cases, to start CANH because of the procedures attending its withdrawal. The Official Solicitor submits that the challenges of diagnosis have increased since the Bland case, rather than the way becoming clearer as might have been expected. The difficulties in diagnosis are underlined in the submissions of the intervenors, Care Not Killing, and the report of Professor Sturman which accompanies them, but are also apparent from other material available to us. Medical science, continually developing, cannot always provide answers, and greater knowledge can produce yet more questions. Developments in this area of medicine include the ability to differentiate between vegetative state and minimally conscious state, and improvement in the outcomes for some individual patients. These changes inevitably create new challenges of diagnosis and management, new uncertainties, for the medical profession. The situation is not, however, on a par with that which faced the House of Lords in the Bland case. The survival of patients such as Anthony Bland, then so unprecedented, is now a well established feature of medical practice. The documentation supplied to us shows that the difficulty that there is in assessing the patient and in evaluating his or her best interests is well recognised. The process is the subject of proper professional guidance, covering vitally important matters such as the involvement in the decision making process of a doctor with specialist knowledge of prolonged disorders of consciousness, and the obtaining of a second opinion from a senior independent clinician with no prior involvement in the patients care. The second opinion, as contemplated in the guidance (see paras 79 and 80 above, for example), is, in my view, a crucial part of the scrutiny that is essential for decisions of this sort, and the guidance sets parameters which should ensure that it is an effective check, in that the clinician who provides the second opinion must (so far as reasonably practical in the circumstances of the case) be external to the organisation caring for the patient, and is expected to carry out his or her own examination of the patient, consider and evaluate the medical records, review information about the patients best interests, and make his or her own judgement as to whether the decision to withdraw (or not to start) CANH is in the best interests of the patient. Thus the interests of patients and their families are safeguarded, as far as possible, against errors in diagnosis and evaluation, premature decisions, and local variations in practice. If, at the end of the medical process, it is apparent that the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patients welfare, a court application can and should be made. As the decisions of the ECtHR underline, this possibility of approaching a court in the event of doubts as to the best interests of the patient is an essential part of the protection of human rights. The assessments, evaluations and opinions assembled as part of the medical process will then form the core of the material available to the judge, together with such further expert and other evidence as may need to be placed before the court at that stage. In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases. |
These appeals arise out of tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions (the DPP) relating to prosecutions of those who are alleged to have assisted a suicide is lawful. The appeals arise out of claims brought by three men, Tony Nicklinson, Paul Lamb and someone known for the purpose of these proceedings as Martin, each of whom was suffering such a distressing and undignified life that he had long wished to end it, but could not do so himself because of his acute physical incapacity. Mr Lamb contends that the law should permit him to seek assistance in killing himself in this country, and, if it does not, it should be changed so as to enable him to do so. He is supported by the widow of Mr Nicklinson, who has died since the proceedings were issued. Martins case is that there should be clearer guidance in the policy published by the DPP with regard to prosecuting those from whom he would like advice and assistance in connection with killing himself. An outline of the facts The first appeal arises from the fact that Mr Nicklinson suffered a catastrophic stroke eight or nine years ago, when he was aged 51. As a result, he was completely paralysed, save that he could move his head and his eyes. He was able to communicate, but only laboriously, by blinking to spell out words, letter by letter, initially via a perspex board, and subsequently via an eye blink computer. Despite loving and devoted attention from his family and carers, his evidence was that he had for the past seven years consistently regarded his life as dull, miserable, demeaning, undignified and intolerable, and had wished to end it. Because of his paralysed state, Mr Nicklinson was unable to fulfil his wish of ending his life without assistance, other than by self starvation, a potentially protracted exercise, involving considerable pain and distress. His preference was for someone to kill him by injecting him with a lethal drug, such as a barbiturate, but, if that was not acceptable, he was prepared to kill himself by means of a machine invented by Philip Nitschke, an Australian doctor. This machine, after being loaded with a lethal drug, could be set up so as to be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer. Because he was told that it would be unlawful for someone to kill him or even to assist him in killing himself, Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his rights under article 8 of the Convention. While expressing great sympathy and respect for Mr Nicklinsons situation and wishes, the High Court, in an impressive judgment given by Toulson LJ, with whom Royce and Macur JJ agreed, refused him both forms of relief [2012] EWHC 2381 (Admin). Following that decision, Mr Nicklinson embarked on the very difficult and painful course of self starvation, refusing all nutrition, fluids, and medical treatment, and he died of pneumonia on 22 August 2012. Mr Nicklinsons wife, Jane, was then both added (because she contended that she had a claim in her own right) and substituted (in her capacity as administratrix of Mr Nicklinsons estate) as a party to the proceedings, and pursued an appeal to the Court of Appeal. The Court of Appeal, while again sympathetic and respectful of her position, dismissed her appeal for reasons given in a similarly impressive judgment by Lord Dyson MR and Elias LJ, with whom Lord Judge CJ agreed [2013] EWCA Civ 961; [2014] 2 All ER 32. Because it was feared that there might be a challenge to Mrs Nicklinsons right to pursue an appeal, Paul Lamb was added as a claimant in the proceedings before the hearing in the Court of Appeal. Since a catastrophic car crash in 1990, Mr Lamb has been completely immobile, save that he is able to move his right hand. He requires carers 24 hours a day, suffers pain every day, and is permanently on morphine. His condition is irreversible, and he wishes a doctor to end his life, which he regards as consisting of a mixture of monotony, indignity and pain. He therefore applied for the same relief as Mr Nicklinson had sought, and it was similarly refused by the Court of Appeal. The second appeal arises from the fact that Martin (who wishes to be so described in order to maintain his privacy) suffered a brainstem stroke in August 2008, when he was 43. He is almost completely unable to move and can only communicate thorough slow hand movements and via an eye blink computer. His condition is incurable, and, despite being devotedly looked after by his wife and carers, his evidence is that he wishes to end his life, which he regards as undignified, distressing and intolerable, as soon as possible. Apart from self starvation, Martins only way of achieving this is by travelling to Zurich in Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. However, he first needs (i) to find out about this service, (ii) to join Dignitas, (iii) to obtain his medical records, (iv) to send Dignitas money, and (v) to have someone accompany him to Zurich. For understandable reasons, his wife does not want to be involved, and he does not want to involve any other member of his family, in this project. So, as he says, he needs assistance from one of his carers or from an organisation such as Friends At The End. Martin began proceedings seeking an order that the DPP should clarify, and modify, his published Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, published in February 2010 (the 2010 Policy) and other relief. He seeks the clarification and modification to enable responsible people, including, but not limited to, carers who are willing to do so, to know that they could assist Martin in committing suicide through Dignitas without the risk of being prosecuted. Martins proceedings were heard together with those brought by Mr Nicklinson, and they failed in the High Court. A few months later, he embarked on an attempt to end his life by self starvation, but abandoned it in distressing circumstances. Martins appeal, which was heard together with that of Mrs Nicklinson and Mr Lamb, was partially successful, in that Lord Dyson and Elias LJ considered that, in certain respects, the 2010 Policy was not sufficiently clear in relation to healthcare professionals [2013] EWCA Civ 961, para 140; [2014] 2 All ER 32. Lord Judge CJ took a different view, and would have dismissed Martins appeal. The Court of Appeal gave Mrs Nicklinson and Mr Lamb (the appellants) permission to appeal to the Supreme Court in the first appeal. In the second appeal, the Court of Appeal gave the DPP permission to appeal, and Martin permission to cross appeal, as he contends that the order of the Court of Appeal in his case does not go far enough. The tragic situations in which Mr Nicklinson, Mr Lamb and Martin found or find themselves are not as uncommon as some may like to think. There is reliable statistical and anecdotal evidence which indicates that, in recent years, hundreds of people suffering from terminal or chronic conditions, whose lives are often painful and/or undignified, committed suicide annually, that a significant number of them were assisted in doing so, and that there are many who wish to die, but (like Mr Nicklinson, Mr Lamb and Martin) cannot do so without assistance or advice, which it is generally assumed that they are unable to obtain because of the current state of the law. Examples of such evidence may be found in Assisted Dying for the Terminally Ill Bill First Report HL Paper 86 I, 2005, especially para 77, and the Report on Assisted Dying, the Falconer Report, 2012, especially pp 108 138. The legal and policy background The domestic law relating to killing and suicide Murder represents the most serious form of homicide, and it is a common law offence in England and Wales, although some of its ingredients have been altered by legislation, most significantly by the Homicide Act 1957 (the 1957 Act). For present purposes, it suffices to say that the offence of murder involves the perpetrator killing a person when intending either to kill or to inflict grievous bodily harm. A conviction for murder carries a mandatory life sentence. Manslaughter is also a common law offence with statutory amendments, again most notably in the 1957 Act. The offence of voluntary (as opposed to involuntary) manslaughter is, in effect, murder in circumstances where the perpetrator is able to raise certain specified grounds of mitigation, including diminished responsibility and loss of control (all of which are subject to certain requirements). Manslaughter carries a maximum sentence of life imprisonment, and there is no minimum sentence. Mercy killing is a term which means killing another person for motives which appear, at least to the perpetrator, to be well intentioned, namely for the benefit of that person, very often at that persons request. Nonetheless, mercy killing involves the perpetrator intentionally killing another person, and therefore, even where that person wished to die, or the killing was purely out of compassion and love, the current state of the law is that the killing will amount to murder or (if one or more of the mitigating circumstances are present) manslaughter see per Lord Judge CJ in R v Inglis [2011] 1 WLR 1110, para 37. As Lord Browne Wilkinson said in Airedale NHS Trust v Bland [1993] AC 789, 885, the doing of a positive act with the intention of ending life is and remains murder. Nonetheless, a doctor commits no offence when treating a patient in a way which hastens death, if the purpose of the treatment is to relieve pain and suffering (the so called double effect) see per Lord Goff of Chieveley in Bland at p 867. The House of Lords in that case decided that no offence was involved in refusing or withdrawing medical treatment or assistance, ultimately because this involved an omission rather than a positive act. While Lord Goff, Lord Browne Wilkinson and Lord Mustill were all concerned about the artificiality of such a sharp legal distinction between acts and omissions in this context, they also saw the need for a line to be drawn, and the need for the law in this sensitive area to be clear see at pp 865, 885 and 887 respectively. Until 1961, it was an offence to commit suicide, which was regarded as self murder; people who unsuccessfully attempted to kill themselves were not infrequently prosecuted. Section 1 of the Suicide Act 1961 (the 1961 Act) provided that [t]he rule of law whereby it is a crime for a person to commit suicide is hereby abrogated. As suicide was regarded as self murder before 1961, a person who aided or encouraged another person to commit suicide committed an offence; thus, the survivor of a suicide pact was guilty of murdering the successful self murderer see R v Croft [1944] 1 KB 295. Section 4 of the 1957 Act provided that such a survivor would only be guilty of manslaughter. However, the abolition of suicide four years later as a crime meant that it was necessary to address the question of what to do about assisting and encouraging suicide. Parliament dealt with that issue in section 2 of the 1961 Act (section 2), subsection (1) of which has now been repealed and re enacted in the form of subsections (1) (1C) by section 59(2) of the Coroners and Justice Act 2009 (the 2009 Act). The relevant parts of section 2 in its current form provide as follows: (1) A person (D) commits an offence if (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide. (1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years. (4) [N]o proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions. The involvement of the civil courts In Bland, the House of Lords held that it was lawful for doctors to discontinue treatment of a person who was in what was then called a persistent vegetative state. As Lord Goff explained at p 864, it had already been established that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. Where a person was unable to communicate his wishes, the correct question to ask, according to Lord Goff at p 868, was whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, and in that case the answer was in the negative. In adopting the best interests principle, the House of Lords followed its earlier decision in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, and in adopting the omission/commission distinction, it followed the approach of the Court of Appeal in two cases which raised the question of medical treatment for a severely disabled child In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 (Re B (Wardship)) and In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33. Lord Goff accepted that there was a fundamental difference between a positive action which caused death and an omission which resulted in a death. At p 866, he said: [T]the doctor's conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. The way in which that passage is expressed indicates a certain and understandable discomfort with the notion that switching a machine off actually is an omission. A little later, Lord Goff dealt with another difficulty to which his conclusion gave rise, when he contrasted the position of a doctor in such a case with that of an interloper who maliciously switches off a life support machine. Although he did not expressly say so, such an action must, I think, amount to murder or manslaughter, and Lord Goff dealt with the difficulty by saying that such an interloper would be actively intervening to stop the doctor from prolonging the patients life, and such conduct cannot possibly be categorised as an omission. Subsequently, there has been a number of cases where, in the best interests of a patient, and often contrary to the wishes of his close family, the court has authorised switching off a life support machine, stopping providing food and drink, and withholding medical treatment (even of an elementary nature), all of which would lead inevitably to death. As was said in Bland, the common law has always recognised the right of a person to refuse treatment in advance, and, in that connection, Parliament has intervened to an extent through sections 24 26 of the Mental Capacity Act 2005, which permits individuals with capacity to make a valid advance direction refusing medical treatment, including treatment which would be life sustaining. Further, the courts have also recognised that, where a patient is unable to give her consent, it is lawful to give her treatment if it is necessary in her best interests see Re F. In cases of withdrawal of treatment, the House of Lords recommended in Bland that, before treatment could be withheld in any case where it was impossible for the patient to be consulted, permission should be sought from the High Court until a body of experience and practice [had] buil[t] up which will obviate the need for application in every case pp 873 4. The role of the court in such cases was recently discussed by Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] 3 WLR 1299, paras 18 22 and 35 39. As Hoffmann LJ said in Bland at p 825, Modern medicine faces us with fundamental and painful decisions about life and death which cannot be answered on the basis of normal everyday assumptions. The accuracy of this observation was subsequently demonstrated by the decision of the Court of Appeal In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 (Conjoined Twins). This decision took the law further in that the court authorised surgeons to separate conjoined twins, a positive act rather than omission, which would inevitably hasten the death of one twin in order to improve very considerably the life expectancy of the other. In the subsequent case of In re B (Consent to Treatment Capacity) [2002] 1 FLR 1090 (Re B (Treatment)), the applicant, who was effectively tetraplegic, and who was dependent on an artificial ventilation machine in order to breathe, wished the machine to be turned off, as she wanted to die, owing to the very poor quality of her life. Her doctors refused to turn the machine off, and she applied to the court for an order that they do so. Having concluded that the applicant had the mental capacity to make the decision, Dame Elizabeth Butler Sloss P decided that the issue was not to be determined by considering what the court concluded was in her best interest. As explained in para 23 above, under the common law, it was purely a matter for the applicant whether or not the machine was turned off, provided that she was in a fit mental state to form a view. And, as she wanted the machine turned off, and she was mentally fit, the continued application of the machine to her body constituted in law trespass to the person. Accordingly she was granted the relief which she sought. The Convention and assisted suicide The two most central rights contained in the Convention for the purposes of the present appeals are in articles 2 and 8. Article 2, in summary form, guarantees the right to life, and, unsurprisingly, it is an unqualified right. Article 8.1 entitles everyone to respect for his private life. This right is qualified, as article 8.2 prohibits any interference by a public authority with the exercise of this right unless (i) it is in accordance with the law, and (ii) it is necessary in a democratic society, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 (Pretty v DPP), Mrs Pretty, who suffered from the progressive condition of motor neurone disease, complained that (i) the refusal of the DPP to grant her husband proleptic immunity from prosecution if he assisted her in killing herself (which she wished to do when her disease became intolerable), and/or (ii) the prohibition on assisting suicide in section 2, violated her rights under articles 2, 3, 8, 9 and 14 of the Convention. The House of Lords held that Mrs Prettys desire to end her life prematurely did not engage her rights under any of those articles. The House went on to find that, if this was wrong, the government, to quote Lord Bingham at para 30, ha[d] shown ample grounds to justify the existing law and the current application of it, although this was not to say that no other law or application of it would be consistent with the Convention. This view was also adopted by Lord Steyn, Lord Hope, and Lord Scott at paras 62, 97, and 124, and, albeit implicitly, by Lord Hobhouse at paras 111 and 120. Mrs Pretty then applied to the European Court of Human Rights (the Strasbourg court), where she was partially successful, in that it was held, albeit in somewhat guarded terms, that her desire to end her life did engage article 8.1, but not any other article see Pretty v United Kingdom (2002) 35 EHRR 1 (Pretty v UK), para 67. In three subsequent decisions, the Strasbourg court has stated in clear terms that article 8.1 encompasses the right to decide how and when to die, and in particular the right to avoid a distressing and undignified end to life (provided that the decision is made freely) see Haas v Switzerland (2011) 53 EHRR 33, para 51, Koch v Germany (2013) 56 EHRR 6, paras 46 and 51, and Gross v Switzerland (2014) 58 EHRR 7, para 60. These cases also establish that the fact that a third party may have to be involved in enabling a person to die does not prevent that person from invoking article 8.1. Furthermore, it is clear from Koch, paras 43 46 that a person in Mrs Nicklinsons position, namely a spouse or partner who shares a close relationship with the person who wishes to die, and is closely involved in that persons suffering and desire to die, can invoke an article 8 right of her own in that connection. It is also clear from Koch, paras 78 82 that, at least in the Strasbourg court, Mrs Nicklinson would not be able to rely on her late husbands article 8 rights in her capacity as his personal representative or sole beneficiary. Although Mrs Prettys article 8 rights were held to have been interfered with in Pretty v UK, she failed in her claim, because the interference with her right was held to be justified by article 8.2, at least from the perspective of the Strasbourg court. In para 74 of its decision, the Strasbourg court described section 2 as designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. The court also said that many terminally ill individuals will be vulnerable, and it is the vulnerability of the class which provides the rationale for the law in question. Accordingly, it was primarily for states to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or exceptions were to be created. At para 76, the Strasbourg court said this: The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided . It does not appear arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. The court accordingly concluded in para 78 that the interference in this case may be justified as necessary in a democratic society for the protection of the rights of others, so that there was no violation of article 8. In Haas, the applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. The Strasbourg court referred at para 55 to the fact that the vast majority of member states seem to attach more weight to the protection of the individuals life than to his or her right to terminate it, and therefore considered that the states enjoy a considerable margin of appreciation in this area. The court accordingly concluded in para 56, that, although it had sympathy with the applicants wishes, the regulations put in place by the Swiss authorities pursue, inter alia, the legitimate aims of protecting everybody from hasty decisions and preventing abuse. The court also observed in para 58 that the right to life guaranteed by article 2 obliges states to establish a procedure capable of ensuring that a decision to end ones life does indeed correspond to the free wish of the individual concerned. In Koch, the applicants late wife, who was tetraplegic, needed his help to commit suicide. The Strasbourg court considered that the German courts failure to entertain his application, which was for a declaration that the refusal of a Federal drugs institute to enable him to obtain a lethal dose of medication was unlawful, infringed his article 8 rights, which could encompass a right to judicial review, even in a case in which the substantive right in question had yet to be established para 53. For present purposes, the case is of interest mainly because, in para 26, the court explained that in 36 of the 43 member states (including the UK) any form of assistance to suicide is strictly prohibited and criminalised by law, in three (Germany, Sweden and Estonia) such assistance is not a criminal offence, and four (Switzerland, Belgium, the Netherlands and Luxembourg) allowed medical practitioners to prescribe lethal drugs, subject to specific safeguards. At para 70, the court stated that the fact that the state parties to the Convention are far from reaching a consensus on the legal treatment of assisting suicide points to a considerable margin of appreciation enjoyed by the state in this context. In Gross, the applicant had become so old and frail that she found her quality of life so bad that she had for some time wished to kill herself. However, she was unable to find a doctor in Switzerland who would provide her with the necessary prescription for a lethal drug, because her counsel was unable to guarantee that any doctor who prescribed the drug would not risk any consequences from the point of view of the code of professional medical conduct para 11. At para 62, the court observed that there could be positive obligations inherent in an effective respect for private life, and that this could include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals rights and the implementation, where appropriate, of specific measures. At para 63, the court explained that the applicants case primarily raises the question whether the State had failed to provide sufficient guidelines defining if and under which circumstances medical practitioners were authorised to issue a medical prescription to a person in the applicants circumstances. Having considered the Swiss law on the topic, the court (in what was a bare majority judgment, as three of the seven judges dissented) held that the applicants article 8 rights were infringed. The court said in para 65 that there was a lack of clear legal guidelines, which was likely to have a chilling effect on doctors who would otherwise be inclined to provide someone such as the applicant with the requested medical prescription. In the following paragraph, the court explained that, if there had been clear, state approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition, the applicant would not have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life. So far as the domestic position is concerned, section 1 of the Human Rights Act (the 1998 Act) defines Convention rights as, inter alia, the rights set out in articles 2 12 and 14 of the Convention. Section 3(1) provides that [s]o far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. Section 4 states that where one of the more senior courts in the UK concludes that a statutory provisions is nonetheless incompatible with a Convention right, it may make a declaration of that incompatibility. Section 6 requires public authorities to act compatibly with the Convention save where statute prevents them from doing so. The role of the DPP Section 2(4) of the 1961 Act precludes any prosecution of a person who has allegedly contravened section 2(1) without the DPPs consent. However, as Lord Hughes convincingly demonstrates in his judgment, section 2(4) has a relatively limited function. The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPPs prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service (CPS), it would have prevented the police prosecuting without the consent of the DPP). However, that does not undermine the importance of the prosecutorial discretion in connection with assisting suicide. The public importance of, and the public concern about, this discretion in the present context were recognised by the DPP in December 2008, when he voluntarily published a decision containing his full reasons for not prosecuting the parents of a tetraplegic young man for taking their son to Zurich to enable him to be assisted to kill himself, as discussed by Lord Hope and Lord Brown in R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, paras 49 51 and 79 81 respectively. The proceedings in Purdy were brought following the decision of the Strasbourg court in Pretty v UK, in order to require the DPP to spell out his policy in relation to his prosecutorial discretion in a public document. Ms Purdy suffered from progressive multiple sclerosis and expected that a time would come when she would regard her continued existence as intolerable and would wish to end her life. She would need the assistance of her husband to do so (by taking her to Switzerland to enable her to use the services of Dignitas) and wished to ensure, as far as possible, that he would not be prosecuted under section 2(1) of the 1961 Act. She sought information from the DPP as to his likely attitude to a prosecution of her husband in those circumstances, and he declined to give it. While maintaining her claim for information, Ms Purdy accepted that the DPP could not give her husband a guarantee of immunity from prosecution, as this would be a matter for Parliament (per Lord Hope at para 30). Departing from its decision in Pretty v DPP, following the Strasbourg courts decision in Pretty v UK, the House of Lords upheld her contention that the DPPs refusal infringed her article 8 rights. Given that her article 8 rights were engaged, Ms Purdy was entitled to expect the law to be accessible and foreseeable, and this required that the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise, as Lord Hope said at para 43 quoting from Hasan and Chaush v Bulgaria (2000) 34 EHRR 1339, para 84. The Strasbourg court also observed that [t]he level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. The DPPs argument in Purdy was that his Code for Crown Prosecutors, issued under section 10 of the Prosecution of Offences Act 1985, provided sufficient guidance, but the House rejected this argument as the Code applied to all crimes and [fell] short of what [was] needed to satisfy the Convention tests of accessibility and foreseeability in relation to assisting a suicide per Lord Hope at para 53. As Lady Hale put it in para 64, the object of the exercise should be to focus, not upon a generalised concept of the public interest, but upon the features which will distinguish those cases in which deterrence will be disproportionate from those cases in which it will not. Accordingly, as Lord Hope said at para 56, the DPP should be required to promulgate an offence specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdys case exemplifies, whether or not to consent to a prosecution. Within three months of this decision, the DPP issued a draft policy, identifying sixteen factors which would favour prosecution, and thirteen which would point against prosecution. Eight of the sixteen and seven of the thirteen were said to carry more weight than the remaining eight and six respectively. The CPS consulted widely about the contents of this draft policy, raising a large number of questions, and receiving over 4700 responses, which the DPP describes as being of a high quality and the largest number of responses the CPS has ever received about a single topic. As a result, he modified the draft policy and produced the 2010 Policy. The 2010 Policy The 2010 Policy is detailed. After making a number of points, including the need for a prosecutor to be satisfied that a case satisfies the evidential requirement before considering whether it satisfies the public interest requirement, it deals with the relevant public interest factors from para 39. Para 39 makes the points that each case must be determined on its own merits, and that an overall assessment is required, a point repeated at para 47, where it is also stated that the list of factors in the 2010 Policy is not intended to be exhaustive. Para 39 also states that sometimes a single factor one way will outweigh a number of factors the other way, and para 40 points out that the absence of a specified factor should be regarded as neutral. Paras 41 and 42 deal with the reliability of the evidence relating to the factors. The 2010 Policy then turns to Public interest factors tending in favour of prosecution and continues: 43. A prosecution is more likely to be required if: 1. The victim was under 18 years of age; 2. The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide; 3. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide; 4. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect; 5. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative; 6. The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim; 7. The suspect pressured the victim to commit suicide; 8. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; 9. The suspect had a history of violence or abuse against the victim; 10. The victim was physically able to undertake the act that constituted the assistance him or herself; 11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication; 12. The suspect gave encouragement or assistance to more than one victim who were not known to each other; 13. The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance; 14. The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care; 15. The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present; 16. The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. 44. On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit financial or otherwise from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspects act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts. The 2010 Policy then turns to Public interest factors tending against prosecution, and continues: 45. A prosecution is less likely to be required if: 1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide; 2. The suspect was wholly motivated by compassion; 3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance; 4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide; 5. The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide; 6. The suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance. The DPPs evidence in these proceedings is that there has been only one prosecution under section 2, and that was a successful prosecution of someone who provided petrol and a lighter to a vulnerable man known to have suicidal intent, and who subsequently suffered severe burns as a result. The DPP also informed the Court that it appears from Dignitass website that, between 1998 and 2011, a total of 215 people from the UK used its services, and that nobody providing assistance in that connection has been prosecuted. Assisted dying: the debate In Pretty v DPP at para 54, Lord Steyn explained that the subject of euthanasia and assisted dying have been deeply controversial for a very long time, and continued: The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless. The literature is vast . It is not for us, in this case, to express a view on these arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken diametrically opposite views and still do. Following the decision in Bland, the House of Lords Committee on Medical Ethics, after receiving evidence, reported that [a]s far as assisted suicide is concerned, they saw no reason to recommend any change in the law (see HL Paper 21 I, 1994, para 26). This was primarily based on the message which society sends to vulnerable and disadvantaged people, which should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life (ibid, para 239). The Government in its response agreed on the grounds that a change in the law would be open to abuse and put the lives of the weak and vulnerable at risk (1994) Cm 2553, page 5. The possibility of relaxing the statutory prohibition on assisting suicide has been debated in the House of Lords and House of Commons on at least six occasions in the past nine years. Thus, in November 2005, following the publication of HL Paper 86 1 referred to in para 14 above, Lord Joffe unsuccessfully introduced the Assisted Dying for the Terminally Ill Bill (the 2005 Bill) in the House of Lords, and in July 2009, Lord Falconer of Thoroton moved an amendment that would have permitted assisting the terminally ill to commit suicide during the debate on the Bill which became the Coroners and Justice Act 2009. During the debate on the 2005 Bill, Lord Joffe made it clear that he did not support assisted dying for patients who are not terminally ill, and that this was reflected in the Bill, on the basis that after three years of legislative effort on the subject, I have no intention of pursuing this issue beyond the ambit of the present Bill Hansard (HL Debates), 12 May 2006 Col 1188. During the July 2009 debate on the Bill which became the 2009 Act, the House of Lords defeated the amendment Hansard (HL Debates) 7 July 2009, cols 595ff. Their Lordships approved section 59 of the 2009 Act, whose purpose, as explained above, was to re enact section 2 of the 1961 Act in clearer terms. There was an adjournment debate on assisted dying in the House of Commons in November 2008 Hansard (HC Debates), 11 November 2008, cols 221WHff. The House of Commons also approved the 2009 Act in a brief debate during which the purpose of section 59 was explained Hansard (HC Debates), 26 January 2009, col 35. More recently, there was a debate on the Directors 2010 Policy in the House of Commons in March 2012, where changes in the law were mooted, but the 2010 Policy was approved see Hansard (HC Debates), 27 March 2012, cols 1363ff. In September 2010, Lord Falconer set up and chaired a commission on Assisted Dying, which took evidence from many individuals and organisations, and the commissions report was published in January 2012. While it is a full and apparently balanced report, Lord Falconer is a strong and public supporter of liberalising the law on assisted dying, much of the funding of the commission came from people who take the same view, and some people who were against assisted dying refused to give evidence to the commission. The evidence from doctors and other caring professionals was mixed. The views of the medical professional bodies was also mixed ranging from being against doctor involvement, via neutral to being in favour of it. The Falconer Report indicated that in three jurisdictions where it was permissible to assist suicide, there was no evidence of vulnerable groups being subject to any pressure or coercion to seek an assisted death. The same view was expressed in the 2011 report of the Royal Society of Canada Expert Panel on End of Life Decision Making and in the 2012 report of the Quebec National Assembly Dying with Dignity Select Committee. The Falconer Report concluded that there [was] a strong case for providing the choice of assisted dying for terminally ill people, while protecting them and vulnerable people generally from the risk of abuse or indirect social pressure to end their lives. However, the members of the Commission were unable to reach a consensus on the issue of whether a person who has suffered a catastrophically life changing event that has caused them to be profoundly incapacitated should be able to request an assisted death, but they were agreed that people who assisted loved ones and friends in that situation should continue to be treated by the law with compassion and understanding. The issues in these appeals Introductory In the first appeal, the appellants, Mrs Nicklinson and Mr Lamb, contend that section 2(1) of the 1961 Act, at least if read in accordance with conventional principles, constitutes a disproportionate, and therefore an unjustifiable, interference with the article 8 rights of people who have made a voluntary, clear, settled and informed decision to commit suicide, and, who, solely because of their physical circumstances, require the assistance of a third party to achieve that end. I will refer to such people as Applicants, a neutral and convenient, if not entirely accurate, expression. The appellants case is that the article 8 rights of Applicants should be accommodated by their being able to seek the assistance of third parties to enable them to kill themselves in a dignified and private manner, at a time of their choosing, in the United Kingdom, subject to some appropriate form of control so as to ensure that their decision to commit suicide is indeed voluntary, clear, settled and informed. Accordingly, they bring these proceedings against the Secretary of State for Justice, contending that this Court should either (i) read section 2(1) in such a way as to enable it to comply with the Convention (under section 3 of the 1998 Act), or, if that is not possible, (ii) make a declaration that section 2 is incompatible with the Convention (under section 4 of the 1998 Act). The Secretary of State contends that, in the light of the Strasbourg jurisprudence, this is not a contention which is capable of properly being raised before a court, and, even if that is wrong, bearing in mind the practical, moral and policy issues involved, this is not a contention which a domestic court should entertain under the United Kingdoms constitutional settlement. Martins argument in the DPPs appeal in the second appeal is rather different in its target. Although he also relies on article 8, Martin does not challenge the compatibility of section 2 with the Convention. His first argument is that the terms of the 2010 Policy are insufficiently clear in relation to the likelihood of prosecution of those individuals (other than relatives and close friends of the person concerned), especially including doctors and other members of the caring professions, who might otherwise be prepared, out of compassion, to provide a person who has a voluntary, clear, settled and informed wish to commit suicide, with information, advice and assistance in connection with that wish. His second argument is that the Policy should be modified to make it clear that, at any rate absent any aggravating circumstances, such an individual would not be liable to be prosecuted. The DPP argues that it would be inappropriate for a court to seek to dictate what her policy should be. The first appeal raises the following issues: a. Does section 2 impose an impermissible blanket ban on assisted suicide, outside the UKs permitted margin of appreciation? If not, b. Given that the Strasbourg court has decided that it is for the member states to decide whether their own law on assisted suicide infringes article 8, does this Court have the constitutional competence to decide whether section 2 infringes article 8? If so, c. Bearing in mind the nature of the issue, is it nonetheless inappropriate for this Court to consider whether section 2 infringes article 8, on the ground that it is an issue which is purely one for Parliament? If not, d. In the light of the evidence and the arguments presented on this appeal, should the Court decide that section 2 infringes article 8? And finally, e. In the light of the answers to these questions, what is the proper order to make on the first appeal? It is perhaps worth explaining at this stage the difference between issues (b) and (c). Issue (b) raises the general question whether, in a case where the Strasbourg court decides that a point is within a member states margin of appreciation, it is open to a domestic court to declare that a statutory provision, which is within that margin, nonetheless infringes Convention rights in the United Kingdom. Issue (c), which only arises if the court does have such power, is more specific to this case; it is whether, bearing in mind the nature of the point raised in the first appeal, a domestic court is an appropriate forum for considering whether the statutory provision involved, section 2 of the 1961 Act, infringes Convention rights in the United Kingdom, or whether the issue is best left entirely to Parliament. The second issue may be said to raise a constitutional point, whereas the third issue involves more of an institutional point. The second appeal raises two points, namely: f. (raised by the DPPs appeal) does the 2010 Policy comply with the requirements of article 8, and hence section 6 of the 1998 Act, and in particular the requirement of foreseeability? and g. (raised by Martins cross appeal) if the DPP were to prosecute in a case such as Martins, would it represent a disproportionate interference with his article 8 rights? I shall deal with these issues, some of which have more than one facet, in Is section 2 within the UKs margin of appreciation under article 8? issue (a) The appellants contend, as a self contained point, that the effect of the four Strasbourg court decisions on assisted suicide is that a blanket ban such as that imposed by section 2 infringes article 8, even allowing for the wide margin of appreciation accorded to member states. In other words, the appellants argue that, even allowing for the wide margin of appreciation afforded to member states on the issue of assisted suicide, a blanket ban would be regarded by the Strasbourg court as impermissibly outside that wide margin. This contention is said to be supported by the more general proposition that, where a ban curtails a Convention right, the Strasbourg court would hold that it cannot be a blanket ban. In support of this proposition, the appellants cite Hirst v UK (2005) 42 EHRR 41, which was concerned with the right of prisoners to vote. I do not accept this argument. So far as the general point is concerned, the expression blanket ban is not helpful, as everything depends on how one defines the width of the blanket. Thus, a blanket ban on voting for all those serving life sentences would appear to be acceptable to the Strasbourg court and certainly should be in my view. As for the more specific point, I do not consider that the Strasbourg jurisprudence suggests that a blanket ban on assisted dying is outside the margin of appreciation afforded to member states and, even if it is, then, in any event, the provisions of section 2(4) prevent the ban in this jurisdiction being a blanket ban. In connection with the specific point, the opening two sentences of para 76 of the Strasbourg courts decision in Pretty v UK (quoted in para 32 above) are not particularly happily worded. However, it appears to me that the effect of that decision is that, so far as the Strasbourg court is concerned, a national blanket ban on assisted suicide will not be held to be incompatible with article 8. The word therefore in the first sentence refers back to what precedes the paragraph, which (ignoring the discursion in para 75) is a passage at the end of para 74, which seems to me to say that it is a matter for each member state whether, and if so in what form, to provide for exceptions to a general prohibition on assisted suicides. This conclusion is, I think, strongly supported by the fact that the court stated that the great majority of member states have what the appellants would characterise as blanket bans on assisted suicide. The decision in Koch is said by the appellants to support the notion that a blanket ban on assisting a suicide cannot comply with article 8. I do not accept that. The question whether the German substantive law relating to the provision of prescriptions infringed article 8 was specifically left open, and the decision was limited to the fact that the applicants article 8 rights had been infringed by the German courts refusal to consider that issue see paras 52 and 71 of the judgment. Further, the Strasbourg court also made it clear in paras 70 71 that it was for the national court to decide whether what was effectively a prohibition on prescribing drugs to enable people to kill themselves infringed article 8, which appears to me to indicate that such a prohibition did not give rise to a problem under article 8 so far as the Strasbourg court was concerned. Accordingly, I would reject the argument that a blanket ban on assisting suicide is outside the margin of appreciation afforded by the Strasbourg court to member states. In any event, it seems to me that, even if this is wrong, there can be no question of the Strasbourg court holding that section 2 infringes article 8 on the ground that it contains a blanket ban. What it said in paras 76 78 of Pretty v UK appears to me to make it clear that, whatever argument might have been raised if section 2(1) had stood on its own, prosecutorial discretion reinforced by section 2(4), provided that it was implemented so as to render the law accessible and foreseeable, ensured that the current UK law relating to assisted suicide complied with the Convention so far as the Strasbourg court was concerned. None of the subsequent three decisions of that court on assisted suicide call this conclusion into question. (Of course, this would not mean that every aspect of the implementation of national law on assisted dying would be outside the scope of the Strasbourg courts consideration cf the decisions in Koch and Gross). Is it constitutionally open to the UK courts to consider compatibility? issue (b) The Strasbourg court explained in Pretty v UK, para 74, and Haas, para 57, that, when considering legislation on assisted suicide, one has to balance the article 8.1 rights of those who wish to be so assisted, against the need to protect the weak and vulnerable in relation to their article 2 and article 8.1 rights. The court has also acknowledged that views as to where the balance should come down can vary (eg in Gross, para 66), and that this is reflected by the different approaches in different members states see Haas, para 55 and Koch, paras 26 and 70. As explained, this has led the Strasbourg court to conclude that member states enjoy a wide margin of appreciation on the issue of assisted dying see Pretty v UK, para 74, Haas, para 55 and Koch, paras 70 and 71. At first sight, it may appear from this that, as the High Court held, it would be inappropriate for this Court even to consider whether it should determine whether or not section 2 is incompatible with article 8. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20, Lord Bingham said that [t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less, and the Strasbourg court has determined that, at any rate so far as its jurisdiction is concerned, section 2 is consistent with the Convention. Accordingly, it might seem to follow that a UK court should not take a different view. It was, in part, on this basis that the Court of Appeal rejected the contention that section 2 was inconsistent with article 8 see at [2013] EWCA Civ 961, paras 111 114; [2014] 2 All ER 32. In my judgment, however, that is not a good answer to the claims made by the appellants. Lord Binghams observation in Ullah was directed to the majority of cases raising claims that Convention rights have been infringed, where the Strasbourg court concludes either that there has been an infringement or that there has been no infringement. In such cases, in so far as they are capable of being of wider application than to the particular case before it, the Strasbourg court would intend that its conclusions and reasoning be applicable to all member states. So far as the law on assisted suicide is concerned, the conclusion reached by the Strasbourg court is of a different nature. As explained above, the court has held that there is a wide margin of appreciation accorded to each state in this area, and that it is for each state to decide for itself how to accommodate the article 8 rights of those who wish and need to be assisted to kill themselves with the competing interests of the prevention of crime and the protection of others see Pretty v UK, para 74, Haas, para 55 and Koch, paras 70 and 71. In those circumstances, it does not appear to me that the dictum quoted above from Ullah is in point. (For this reason, this is not the occasion to address the question whether, and if so how far, the principle enunciated by Lord Bingham in Ullah, para 20, should be modified or reconsidered.) In a case such as this, the national courts therefore must decide the issue for themselves, with relatively unconstraining guidance from the Strasbourg court, albeit bearing in mind the constitutional proprieties and such guidance from the Strasbourg jurisprudence, and indeed our own jurisprudence, as seems appropriate. Support for this conclusion is to be found in In re G (Adoption: Unmarried Couple) [2009] 1 AC 173. In paras 33 35, Lord Hoffmann pointed out that Convention rights, as defined in section 1 of the 1998 Act, were domestic and not international rights, and that the duty of domestic courts under section 2 of that Act was to take into account, rather than to regard themselves as bound by, decisions of the Strasbourg court, but that there were normally good reasons why we should follow the interpretation adopted in Strasbourg. At para 36 of re G, however, Lord Hoffmann said that different considerations apply in cases in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says the question is within the margin of appreciation. In the following paragraph, Lord Hoffmann stated that in such cases, it is for the court in the United Kingdom to interpret [the relevant article or articles of the Convention] and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. He expanded on this by adding that [t]he margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. Lord Hope agreed with Lord Hoffmann at para 50, and Lady Hale expressed similar views at paras 116 120, saying pithily that if the matter is within the margin of appreciation which Strasbourg would allow us, then we have to form our own judgment. Lord Mance, at para 130, took the same view, explaining that when performing their duties under sections 3 and 6 [of the 1998 Act], courts must of course give appropriate weight to considerations of relative institutional competence. Having then emphasised the importance of giving weight to the decisions of a representative legislature and democratic government within the discretionary area of judgment accorded to those bodies, he made the point that the precise weight will depend, inter alia, on the nature of the right and the extent to which it falls within an area in which the legislature, executive, or judiciary can claim particular expertise. As Lord Hoffmann and Lord Mance explained, their approach does not involve the court calling into question the sovereignty of Parliament. The court has jurisdiction to consider whether a provision such as section 2 is compatible, or can be rendered compatible, with article 8, because that is part of the courts function as determined by Parliament in the 1998 Act. As it happens, it also reflects what the Strasbourg court decided about an individuals right of access to the court in Koch. In an interesting passage in para 229 below, Lord Sumption suggests that, where an issue has been held by the Strasbourg court to be within the margin of appreciation, the extent to which it is appropriate for a UK court to consider for itself whether the Convention is infringed by the domestic law may depend on the reason why the Strasbourg court has concluded that the issue is within the margin. I agree that the reasoning of the Strasbourg court must be taken into account and accorded respect by a national court when considering whether the national law infringes the Convention domestically, in a case which is within the margin of appreciation just as in any other case as section 2(1)(a) of the 1998 Act recognises. However, both the terms of the 1998 Act (in particular sections 2(1) and 4) and the principle of subsidiarity (as expounded for instance in Greens and MT v UK [2010] ECHR 1826, para 113) require UK judges ultimately to form their own view as to whether or not there is an infringement of Convention right for domestic purposes. It is true that in Re G, the House of Lords was concerned with a statutory instrument, but the passages to which I have referred must, as a matter of logic and principle, be as applicable to primary, as to secondary, legislation. It is also true that the decision in Re G was based on the irrationality of the legislation concerned. Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to members states, it would be wrong in principle and contrary to the approach adopted in Re G, for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in Re G, the extent to which a UK court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject matter, and the extent to which the legislature or judiciary could claim particular expertise or competence. In these circumstances, given that the Strasbourg court has held that it is for each state to consider how to reconcile, or to balance, the article 8.1 rights of a person who wants assistance in dying with the protection of morals and the protection of the rights and freedoms of others, I conclude that, even under our constitutional settlement, which acknowledges parliamentary supremacy and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8. The more difficult question, to which I now turn, is whether we should do so. Is it institutionally appropriate to consider whether section 2 infringes article 8? issue (c) Introductory Having concluded that the court does have jurisdiction in principle to determine whether section 2 infringes the Convention, the next question is whether it is institutionally appropriate for a domestic court to consider whether section 2 infringes the article 8 rights of individuals such as Mr Nicklinson and Mr Lamb. In that connection, I have summarised the nub of their case in para 55 above. In approaching this question, it is important to bear in mind that, as Lord Mance explained in Re G, what we have to consider is the breadth of the discretion which the courts should accord to Parliament, or, to put it another way, the limits of the courts deference to Parliaments judgment, on the issue of the extent to which assisting suicide should be criminalised. A summary of the parties respective contentions Section 2 interferes with the article 8 right of Applicants (as I have called them) to determine how and when they should die. Accordingly, it can only be a valid interference if it satisfies the requirements of article 8.2, ie if it is necessary in a democratic society for one or more of the purposes specified in that article, which in the present context would be for the prevention of disorder or crime, for the protection of health or morals, or, most importantly for present purposes, for the protection of the rights and freedoms of others. When considering whether legislative measures satisfy those requirements, four questions generally arise, as Lord Wilson explained in R (Aguilar Quila) v The Secretary of State for the Home Department [2012] 1 AC 621, para 45 (as recently illuminatingly discussed by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] 3 WLR 179, 222, paras 20ff): (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? The appellants accept that the legislative objective of section 2 is to safeguard life, and in particular the lives of the vulnerable and the weak, including those who are not in a position to take informed decisions against acts intended to end life or assist in ending life, to quote from Pretty v UK, para 74, or, as Lady Hale put it in Purdy at para 65, people who are vulnerable to all sorts of pressures, both subtle and not so subtle, to consider their own lives a worthless burden to others. As to the four requirements, as I will call them, identified in Lord Wilsons analysis, the appellants accept that requirement (a) is satisfied in that this objective is sufficiently important to justify limiting a fundamental right, namely the article 8 right of those wish to end their lives and need the assistance of others to do so. They also accept that, so far as requirement (b) is concerned, section 2 has been designed to meet this objective and is rationally connected to it. Accordingly, the issue whether section 2 infringes article 8 turns on whether requirements (c) and (d), necessity and balance, are satisfied. In that connection, the appellants case is that the absolute terms of section 2 are more than necessary to achieve its end, or that they do not strike a fair balance between the interests of Applicants and those of the weak and vulnerable, bearing in mind the grave and significant interference which it involves with the article 8 rights of Applicants, and that this is an argument which a domestic court should consider. In summary terms, the Secretary of States case is that, given that it is accepted that the statutory ban on assisting suicide, subject to prosecutorial discretion, can be rationally justified by the need to protect the weak and vulnerable and was recently affirmed by Parliament in the 2009 Act, any question of decriminalisation should be left to Parliament, as it is a controversial, difficult and sensitive moral and politico social issue, which requires the assessment of many types of risk and the imposition of potentially complex regulations, and it is not a matter on which judges are particularly well informed or experienced. The Secretary of State also relies on the fact that section 2 was held to comply with the Convention by the House of Lords in Pretty v DPP less than thirteen years ago. The protection of the weak and vulnerable Although, as mentioned above, the appellants accept the Secretary of States contention that section 2 is designed to meet the objective of protecting the weak and vulnerable and is rationally connected to that objective, it is worth examining that contention. So far as assisting (as opposed to encouraging) suicide is concerned, section 2 is a somewhat indirect and blunt instrument in that it is, as a matter of practice, aimed at those who need assistance in committing suicide rather than those who are weak and vulnerable. It is a measure of the relative weakness of the connection that, in para 350 below, Lord Kerr concludes that, contrary to the appellants concession, requirement (b) is not satisfied. I do not agree with that conclusion, because it seems to me, in general terms, that a blanket ban on assisting suicide will protect the weak and vulnerable, and, more particularly, that it may well be that those who are in the same unhappy position as Applicants, but do not wish to die, are in a particularly vulnerable position. However, the somewhat tenuous connection between the actual and intended targets is not irrelevant when one turns to requirements (c) and (d). More specifically, if one concentrates on the appellants argument that section 2 should be modified so as to exclude Applicants, it seems to me that the concern about the weak and vulnerable has two aspects. First, there would be a direct concern about weak and vulnerable people in the same unhappy position as Applicants, who do not have the requisite desire (namely a voluntary, clear, settled and informed decision to commit suicide), but who either feel that they have some sort of duty to die, or are made to feel (whether intentionally or not) that they have such a duty by family members or others, because their lives are valueless and represent an unjustifiable burden on others. (This aspect is more fully described by Lord Sumption at para 228 below). Secondly, there is a concern that the extension of the law to permit assisted suicide would send a more general message to weak and vulnerable people, who would consequently be more at risk of committing, or seeking assistance to commit, suicide while not having the requisite desire to do so. The appellants argue that the article 8 rights of Applicants to put an end to their lives, which are rights of a very high order bearing in mind their very cruel circumstances, should not be sacrificed for a merely speculative concern about another class of persons. They say that the harmful effect that liberalising the law on assisting suicide may have on vulnerable and weak people is no more than speculative, because no evidence has been adduced to suggest otherwise, and because in jurisdictions where assisted suicide is permitted, there do not seem to have been any undesirable consequences for the weak and vulnerable. It is true that the Falconer Report, supported by the reports of the two Canadian panels, states that in the Netherlands, Oregon and Switzerland there is no evidence of abuse of the law, which permits assisting a suicide in prescribed circumstances and subject to conditions. However, negative evidence is often hard to obtain, there is only a limited scope for information given the few jurisdictions where assisted suicide is lawful and the short time for which it has been lawful there, and different countries may have different potential problems. In other words, the evidence on that point plainly falls some way short of establishing that there is no risk. The most that can be said is that the Falconer commission and the Canadian panels could find no evidence of abuse. As Lord Sumption points out in paras 224 225 below, however, while the factual evidence in this connection is sparse, anecdotal, and inconclusive, the expert experienced and professional opinion evidence does provide support for the existence of the risk. In all the circumstances, this concern cannot, in my opinion, possibly be rejected as fanciful or unrealistic. Having said that, if a proposal were put forward whereby Applicants could be helped to kill themselves, without appreciably endangering the lives of the weak and vulnerable, then this objection could be overcome, or at least circumnavigated. In that connection, Lady Hale, during argument, brought home to me the significance of the point that it has been regarded as quite acceptable in cases such as Re B (Treatment) that the High Court should have the power to accede to a request by an individual that her life support machine be turned off. Furthermore, albeit less relevantly, I note that in the Mental Capacity Act 2005 Parliament has recognised the right of individuals to give advance directions that they be refused medical treatment. In the former case, the appropriate protection for the weak and vulnerable appears to be that a High Court Judge must first be satisfied that the request is based on a settled, informed and voluntary desire. In the latter case, it would seem that a formal document recording the desire will suffice. The moral arguments The contention that there is a moral justification for the present law did not feature much in argument, and then only in very general terms. In so far as the argument is based on the sanctity, or primacy, of other human lives, it does little more, in my view, than replicate the concerns about the lives of the weak and vulnerable. In so far as it is based on the sanctity or primacy of Applicants lives, it has been substantially undermined by the enacting of section 1 of the 1961 Act. I find it hard to see how a life can be said to be sacred if it is lawful for the person whose life it is to end it; to put the point another way, if the primacy of human life does not prevent a person committing suicide, it is difficult to see why it should prevent that person seeking assistance in committing suicide. I also agree with what Lord Wilson says in this connection in paras 199 and 200 below. Another moral justification briefly advanced for not changing the law was that Parliament did not want to send out a message that human life is to be undervalued. I am somewhat sceptical about semaphore justifications for legislative or judicial decisions, but I accept that we should proceed on the basis this may have some force. However, it seems to me that, once again, this argument is another way of expressing the concern about the need to protect weak and vulnerable people, albeit a larger class of weak and vulnerable people. There is a rather different moral issue, which was not really covered in argument, namely that, while it is one thing for a person to take his own life, it is another thing to take, or even to assist in the taking of, someone elses life. In other words, there may be a view that, even though it is morally acceptable for people to take their own lives, it would be morally corrupting for another person, and indeed for society as a whole, if that other person could assist people in taking their lives. I think that there would be significantly more force in this point if the assister actually performed the act which caused the death, such as actually administering the barbiturate, as opposed to setting up a system which enables the person who wishes to commit suicide to activate the machine to perform the final act. In the eyes of the law, there is a very large difference between the two courses: the first is murder or manslaughter, and the second an offence under section 2. In this connection, the decision of the House of Lords in R v Kennedy (No 2) [2008] 1 AC 269 is very much in point. In that case, the House of Lords, in a powerful opinion given by Lord Bingham, overruled a decision that a defendant was guilty of manslaughter when he had produced a situation in which [the alleged victim] could inject herself [with a lethal drug], in which her self injection was entirely foreseeable and in which self injection could not be regarded as extraordinary on the ground that this decision conflicted with the rules on personal autonomy and informed voluntary choice para 16. Accordingly, [t]he finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him para 18. To my mind, the difference between administering the fatal drug to a person and setting up a machine so that the person can administer the drug to himself is not merely a legal distinction. Founded as it is on personal autonomy, I consider that the distinction also sounds in morality. Indeed, authorising a third party to switch off a persons life support machine, as in Bland or Re B (Treatment) seems to me, at least arguably, to be, in some respects, a more drastic interference in that persons life and a more extreme moral step, than authorising a third party to set up a lethal drug delivery system so that a person can, but only if he wishes, activate the system to administer a lethal drug. Indeed, if one is searching for a satisfactory boundary between euthanasia or mercy killing and assisted suicide, which Lord Sumption discusses at para 227 below, I believe that there may be considerable force in the contention that the answer, both in law and in morality, can best be found by reference to personal autonomy. Subject to those cases where the act can be classified as an omission (eg, to my mind somewhat uncomfortably in terms of common sense, switching off a life supporting machine at least if done by an appropriately authorised person, as in Bland and Re B (Treatment)), it seems to me that if the act which immediately causes the death is that of a third party that may be the wrong side of the line, whereas if the final act is that of the person himself, who carries it out pursuant to a voluntary, clear, settled and informed decision, that is the permissible side of the line. In the latter case, the person concerned has not been killed by anyone, but has autonomously exercised his right to end his life. (I should perhaps make it clear that I am not thereby seeking for a moment to cast doubt on the correctness of the decisions in Bland and Re B (Treatment), both of which appear to me to have been plainly rightly decided). The argument based on the value of human life is not one which can only be raised by the Secretary of State. The evidence shows that, in the light of the current state of the law, some people with a progressive degenerative disease feel themselves forced to end their lives before they would wish to do so, rather than waiting until they are incapable of committing suicide when they need assistance (which would be their preferred option). Section 2 therefore not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives. For the reasons I have discussed, therefore, while it would be wrong to ignore the moral arguments against permitting Applicants to be assisted to kill themselves, I do not consider that they are particularly telling. Indeed, by requiring one to focus on the important feature of personal autonomy, they appear to me to provide a degree of support for the appellants case. In any event, quite apart from the points already made, the mere fact that there are moral issues involved plainly does not mean that the courts have to keep out. Even before the 1998 Act came into force, the courts were prepared to make decisions which developed the law and involved making moral choices of this type. Re B (Wardship), Re J, Bland, Re F and (albeit only by a week) Conjoined Twins were all decided before the 1998 Act was in force, and each decision would have been regarded as involving a wrong moral choice by some people. Further, in Re B (Treatment) the court was prepared to decide that an action should be taken (albeit that it was classified as an omission by Lord Goff) which would end a persons life because that person wanted that action to be taken (although, of course, it should not have been necessary to go to court to give effect to Bs wishes, unless there was some concern over her mental capacity or some other special reason). Thus, the courts have been ready both to assume responsibility for developing the law on what are literally life and death issues, and then to shoulder responsibility for implementing the law as so developed. It is perhaps worth noting in the present context that, despite pleas from judges, Parliament has not sought to resolve these questions through statutes, but has been content to leave them to be worked out by the courts. The argument that the issue should be left to Parliament The Secretary of State contends that, under our constitutional settlement, the determination of the criminal law on a difficult, sensitive and controversial issue such as assisted suicide is one which is very much for Parliament. There is obvious force in that argument, given that, less than five years ago, Parliament approved the general prohibition on assisting suicide, by redrafting section 2(1), so that it continued to render all cases of assisted suicide criminal, and by leaving subsection (4), with its control by the DPP, in place. Nonetheless it is self evident that the mere fact that Parliament has recently enacted or approved a statutory provision does not prevent the courts from holding that it infringes a Convention right. By the 1998 Act, Parliament has cast on the courts the function of deciding whether a statute infringes the Convention. In a case such as the present, where the margin of appreciation applies, a court will only invoke this function where it has concluded that the issue is within its competence, in which case the fact that Parliament has recently considered the issue, while relevant, cannot automatically deprive the courts of their right, indeed their obligation, to consider the issue. It is not easy to identify in any sort of precise way the location of the boundary between the area where it is legitimate for the courts to step in and rule that a statutory provision, which is not irrational, infringes the Convention and the area where it is not. However, it is not, I think, sensible or even possible to seek to define where the boundary lies. In Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, the House of Lords had to consider whether, by changing the common law they would be overstepping the boundary which separates legitimate development of the law from judicial legislation. Lord Goff said this at p 173: I feel bound however to say that, although I am well aware of the existence of the boundary, I am never quite sure where to find it. Its position seems to vary from case to case. Indeed, if it were to be as firmly and clearly drawn as some of our mentors would wish, I cannot help feeling that a number of leading cases in your Lordships House would never have been decided the way they were. If that is the position with regard to a long existing boundary, it is scarcely surprising that it should be the same in relation to a boundary which has been in existence for less than fourteen years. In connection with the present case, the Secretary of State can justifiably place reliance on Lord Binghams observations about the Hunting Act 2004 in R (Countryside Alliance) v Attorney General [2008] 1 AC 719, para 45: There are of course many who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after an intense debate a majority of the countrys democratically elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue. Here we are dealing with a law which is very recent and must be taken to reflect the conscience of a majority of the nation. The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament. Those observations serve as a salutary reminder that we, as judges, should be very cautious before being prepared to hold that we should exercise our jurisdiction under section 4 of the 1998 Act in the present case. However, Lord Binghams words plainly do not by themselves justify a simple refusal to hold that we have or should exercise the jurisdiction. Furthermore, the reasons for, and nature of, the controversy in that case were very different from those in this appeal, and the interference with the article 8 rights of people such as Mr Lamb as a result of section 2 is enormously greater than any arguable alleged interference with the rights of those who wished to hunt in the Countryside Alliance case. Quite apart from this, there is force in the point that difficult or unpopular decisions which need to be taken, are on some occasions more easily grasped by judges than by the legislature. Although judges are not directly accountable to the electorate, there are occasions when their relative freedom from pressures of the moment enables them to take a more detached view. As Lord Brown said in the Countryside Alliance case at para 158, [s]ometimes the majority misuses its powers. Not least this may occur when what are perceived as moral issues are involved. However, (save, as some have argued, in circumstances which are very unlikely ever to arise) Parliamentary sovereignty and democratic accountability require that the legislature has the final say, as section 4 of the 1998 Act recognises: Lord Kerr accurately records the position in para 343 below. As for the other points relied on by the Secretary of State, it is true that in Pretty v DPP the House of Lords unanimously rejected the contention that section 2 infringed the article 8 rights of Ms Pretty, even if such rights were engaged. However, that was immediately after the House had wrongly concluded that her article 8 rights were not engaged, and before the Strasbourg court had considered the issue in the cases referred to in paras 29 38 above. Further, the arguments deployed in Pretty v DPP on this issue were very general in nature (see at p 805D). Indeed, as I shall seek to explain later in this judgment, it seems to me that the arguments deployed by the appellants in this appeal were not sufficiently focussed to justify a declaration of incompatibility in the first appeal. The extent of the need for assessing views, experiences and expertise, as invoked by the Secretary of State, will depend very much on the nature of the appellants proposals, as well as the evidence and arguments. Similarly, the degree of familiarity and confidence which the judiciary can claim in relation to the proposal, which will depend on the precise nature of the proposals. However, as the cases considered in paras 21 26 above demonstrate, the courts are used to dealing with life and death issues of the sort to which the present proceedings give rise. The Secretary of States reliance on the need for detailed provisions and regulatory safeguards has some force, but the court is not being asked to set up a specific scheme under which Applicants could be assisted to commit suicide such that it would be disproportionate for the law to forbid them from doing so. As Lord Hughes says in para 267 below, it is a matter for Parliament to determine the precise details of any scheme. But that does not prevent the court from concluding that there are a number of possible schemes. For the purpose of deciding that article 8 is infringed, the court needs to consider that aspect no further than is necessary to satisfy itself that some such scheme or schemes could be practically feasible. It is also relevant to bear in mind the current position, whereby, with Parliaments approval, the policy of the DPP is to investigate any assisted suicide after the event, and to lean against prosecuting where the assister was a close relative or friend activated by compassion, at least where there are no other, aggravating, relevant factors. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPPs office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view. It is also appropriate to ask which of those two courses would be more satisfactory for the compassionate friend or relative (whose article 8 rights may also be engaged). Furthermore, it is clear from the 2010 Policy, the evidence summarised in para 48 above, as well as from the DPPs decision referred to in para 39 above, that those people who, out of compassion, assist relations and friends who wish to commit suicide, by taking or accompanying them to Dignitas, are routinely not prosecuted. In other words, those people who have access to supportive friends and relations, and who possess the means and physical ability to travel to Switzerland, are able in practice to be assisted in their wish to commit suicide, whereas those people, such as Mr Lamb and Martin, who lack one or more of those advantages, cannot receive any such assistance. Further, even those who can in practice be helped to travel to Switzerland to die would, understandably, prefer to die without the upheaval involved, at their homes with dignity in peace. The point discussed in paras 92 95 above, relating to the moral difference between a doctor administering a lethal injection to an Applicant, and a doctor setting up a lethal injection system which an Applicant can activate himself, is also of significance in relation to institutional competence. It could be said to be a radical step for a court to declare a statutory provision incompatible, if such a declaration involved effectively stating that the law should be changed so as to decriminalise an act which would unquestionably be characterised as murder or (if there were appropriately mitigating circumstances) manslaughter. If, on the other hand, Dr Nitschkes machine, described in para 4 above, could be used, then a declaration of incompatibility would be a less radical proposition for a court to contemplate. Conclusion on this issue In my view, bearing in mind all the features discussed in the preceding 26 paragraphs, the arguments raised by the Secretary of State do not justify this Court ruling out the possibility that it could make a declaration of incompatibility in relation to section 2. The interference with Applicants article 8 rights is grave, the arguments in favour of the current law are by no means overwhelming, the present official attitude to assisted suicide seems in practice to come close to tolerating it in certain situations, the appeal raises issues similar to those which the courts have determined under the common law, the rational connection between the aim and effect of section 2 is fairly weak, and no compelling reason has been made out for the court simply ceding any jurisdiction to Parliament. Accordingly, while I respect and understand the contrary opinion, so well articulated by Lord Sumption and Lord Hughes, I am of the view that, provided that the evidence and the arguments justified such a conclusion, we could properly hold that that section 2 infringed article 8. A court would therefore have to consider an application to make a declaration of incompatibility on its merits, and it seems to me that it would be inappropriate for us to fetter the judiciarys role in this connection in advance. More specifically, where the court has jurisdiction on an issue falling within the margin of appreciation, I think it would be wrong in principle to rule out exercising that jurisdiction if Parliament addresses the issue: it could be said with force that such an approach would be an abdication of judicial responsibility. In that connection, I agree with what Lord Mance says in para 191 below. Further, in practical terms, given the potential for rapid changes in moral values and medicine, it seems to me that such an approach may well turn out to be inappropriate in relation to this particular issue. However, I consider that, even if it would otherwise be right to do so on the evidence and arguments which have been raised on the first appeal, it would not be appropriate to grant a declaration of incompatibility at this time. In my opinion, before making such a declaration, we should accord Parliament the opportunity of considering whether to amend section 2 so as to enable Applicants, and, quite possibly others, to be assisted in ending their lives, subject of course to such regulations and other protective features as Parliament thinks appropriate, in the light of what may be said to be the provisional views of this Court, as set out in our judgments in these appeals. It would, of course, be unusual for a court to hold that a statutory provision, conventionally construed, infringed a Convention right and could not be construed compatibly with it, and yet to refuse to make a declaration under section 4 of the 1998 Act. However, there can be no doubt that there is such a power: section 4(2) states that if there is an incompatibility, the court may make a declaration to that effect, and the power to grant declaratory relief is anyway inherently discretionary. The possibility of not granting a declaration of incompatibility to enable the legislature to consider the position is by no means a novel notion. As pointed out by Lady Hale, Lord Nicholls in Bellinger v Bellinger [2003] 2 AC 467, para 53, said this: It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may not then be able, during the transitional period, to complain that his rights have been violated. The admissibility decision of the court in Walden v Liechtenstein (Application no 33916/96) (unreported) 16 March 2000 is an example of this pragmatic approach to the practicalities of government. In my view, even if the facts and arguments otherwise justified a declaration of incompatibility on the first appeal (which for the reasons given below, I consider they do not), this is one of those exceptional cases where it would have been inappropriate to grant a declaration of incompatibility at this stage. That view is based on considerations of proportionality in the context of institutional competence and legitimacy which are well articulated by Lord Mance in paras 166 170 below, taking forward his discussion in Re G, referred to in paras 71 73 above. There is a number of reasons which, when taken together, persuade me that it would be institutionally inappropriate at this juncture for a court to declare that section 2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration. First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts. Secondly, this is not a case like Re G where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly. Thirdly, section 2 has, as mentioned above, been considered on a number of occasions in Parliament, and it is currently due to be debated in the House of Lords in the near future; so this is a case where the legislature is and has been actively considering the issue. Fourthly, less than thirteen years ago, the House of Lords in Pretty v DPP gave Parliament to understand that a declaration of incompatibility in relation to section 2 would be inappropriate, a view reinforced by the conclusions reached by the Divisional Court and the Court of Appeal in this case: a declaration of incompatibility on this appeal would represent an unheralded volte face. In para 204 below, Lord Wilson refers to the power of the court under section 4 of the 1998 Act as giving rise to mechanism for collaboration between the courts and Parliament, and many judges and academics have referred to the dialogue which takes place between national courts and the Strasbourg court. While those expressions should not detract from the seriousness of a declaration of incompatibility, they may be helpful metaphors. Dialogue or collaboration, whether formal or informal, can be carried on with varying degrees of emphasis or firmness, and there are times when an indication, rather than firm words are more appropriate and can reasonably be expected to carry more credibility. For the reasons just given, I would have concluded that this was such a case. Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made. It would not be appropriate or even possible to identify in advance what amounts to a reasonable time in this context. However, bearing in mind the predicament of the Applicants, and the attention the matter has been given inside and outside Parliament over the past twelve years, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future, either along with, or in addition to, the question whether there should be legislation along the lines of Lord Falconers proposals. Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made, as indicated in para 112 above. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration. In that connection, Lord Wilsons list of factors in para 205 below, while of real interest, might fairly be said to be somewhat premature. Should the Court grant a declaration of incompatibility? issue (d) This question does not need to be answered in the light of the conclusion I have reached in the immediately preceding paragraphs. However, it would, I think, be wrong to leave the first appeal without stating that, even if I had concluded that it would in principle have been institutionally appropriate to make a declaration of incompatibility in these proceedings, I would not have done so on the basis of the evidence and arguments laid before the courts. Before we could uphold the contention that section 2 infringed the article 8 rights of Applicants, we would in my view have to have been satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and that the reasonable concerns expressed by the Secretary of State (particularly the concern to protect the weak and vulnerable) were sufficiently met so as to render the absolute ban on suicide disproportionate. I do not consider that we can be properly confident that we have the evidence or that the courts below or the Secretary of State have had a proper opportunity to address the issue, in order to determine whether requirement (c) or (d) in Aguilar Quila is satisfied. That brings me to the appellants specific proposals, which in my view suffered from a lack of proper focus. As I understand it, they rely heavily on the recommendations of the Falconer Report and the conclusions of Smith J in the Canadian case of Carter v Canada [2012] BCSC 886, but I would find it hard to accept either of them as a sound basis for supporting the appellants case. So far as the Carter case is concerned, I have nothing to add to what Lord Mance says at paras 178 182 below. As for the Falconer Commission, in common with the proponents of change in 2006 and 2009 in the House of Lords, it recommended that section 2 should be cut down only to the extent that assistance could be accorded to those who were terminally ill with twelve months or less to live. (I believe that Lord Falconer is currently proposing a shorter period, six months.) That would not assist Applicants. Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live. Further, the Falconer Report suggests that the decision whether to permit someone to be assisted to die should be left to doctors. That is understandable (though I am not entirely convinced by it) if the issue is whether the person concerned will die shortly. However, if the people who are to be assisted are in the sad situation of Applicants, I would have thought that there is much to be said for the idea, first mooted by Lady Hale and developed in her judgment in paras 314 316 below, that it should be a High Court Judge who decides the issue. Indeed, it appears to me that it may well be that the risks to the weak and vulnerable could be eliminated or reduced to an acceptable level, if no assistance could be given to a person who wishes to die unless and until a Judge of the High Court has been satisfied that his wish to do so was voluntary, clear, settled and informed. As explained in paras 21 26 above, over the past twenty five years, the High Court has been able to sanction a number of actions in relation to people which will lead to their deaths or will represent serious invasions of their body sterilisation, denial of treatment, withdrawal of artificial nutrition and hydration, switching off a life support machine, and surgery causing death to preserve the life of another. It is true that in most of these cases, the court is involved because the person concerned cannot express his wishes. However, that is not true of cases such as Re B (Treatment), where the issue for the court would be identical to that in the type of case raised by the appellants. In these circumstances, I consider that it is certainly conceivable that a court could conclude that section 2 infringes article 8 in so far as it precludes an Applicant from receiving assistance in committing suicide, provided that a High Court Judge has formally determined that he has a voluntary, clear, settled and informed wish to do so. However, over and above the reason discussed in paras 113 118 above, it would not have been appropriate to reach such a conclusion in these proceedings. Neither the Secretary of State nor the courts below have had a proper opportunity to consider this, or any other, proposal. As Lord Mance explains more fully in paras 175 177 below, in both the High Court and the Court of Appeal, the claim of a declaration of incompatibility was rather a fall back argument, and the appellants contended that the issue could not be determined without further fact finding. Further, the argument in those courts was primarily advanced on the basis that someone would actually have to kill Mr Nicklinson and Mr Lamb, as opposed to enabling them to administer a fatal dose themselves through operating an eyeblink computer, and, for the reasons given in paras 92 95 and 110 above, the ability of an Applicant to commit suicide through the use of a machine such as the eye blink computer is of importance in my view. In any event, at least on the basis of the arguments and evidence which have been put before the Court, there would have been too many uncertainties to justify our making a declaration of incompatibility. Of course, it is for Parliament to decide how to respond to a declaration of incompatibility, and in particular how to change the law. However, at least in a case such as this, the Court would owe a duty, not least to Parliament, not to grant a declaration without having reached and expressed some idea of how the incompatibility identified by the court could be remedied. Thus, it appears to me that it would be necessary to consider purely factual matters, such as whether devices such as Dr Nitschkes machine are reliable, whether they could be activated by Applicants, and whether it would be feasible to use them. There would also be mixed factual and policy issues to consider, such as whether appropriate safeguards (including by whom and on what basis the decision to permit an assisted suicide should be made) could be developed to protect both those who firmly wish to die and those who do not, whether Applicants could be fairly identified and regulated as a self contained collection of people, whether there would be implications for people who were not Applicants but wished to be assisted in killing themselves, and if so what the implications were, and how they should be dealt with. The disposal of the first appeal issue (e) In these circumstances, I consider that we should dismiss the first appeal. However, it is right to add that, if I had concluded that article 8 was infringed by section 2 as conventionally interpreted, I would have had no hesitation in rejecting the appellants contention that section 2 could be read, in the light of section 3 of the 1998 Act, so as to comply with the Convention. The only argument put forward to support the contention was that, a person who assisted an Applicant to die could rely on the doctrine of necessity to avoid criminal liability under section 2. As Lord Dyson and Elias LJ explained in para 25 of their judgment in the Court of Appeal, to extend the defence of necessity to a charge of assisted suicide would be a revolutionary step, which would be wholly inconsistent with both recent judicial dicta of high authority, and the legislatures intentions. As to judicial dicta, see R v Howe [1987] 1 AC 417, 429B D and 453B F, per Lord Hailsham and Lord Mackay respectively, Bland, pp 892E 893A per Lord Mustill, and Inglis at para 37, per Lord Judge CJ. So far as legislative intention is concerned, in 1961, Parliament decided, through section 2(1), to create a statutory offence of assisting a suicide in a provision which admitted of no exceptions, and it confirmed that decision as recently as 2009 (when section 2(1) was repealed and re enacted in more detailed terms) following a debate in which the possibility of relaxing the law on the topic was specifically debated. I turn then to the issues raised by the DPPs appeal. Does the 2010 Policy infringe article 8? issue (f) The challenge to the validity of the 2010 Policy In Purdy at para 41, Lord Hope explained that any law which restricts a Convention right must satisfy the two requirements of accessibility and foreseeability. He went on to explain that the requirement of foreseeability is satisfied where the person concerned is able to foresee. the consequences which a given action may entail, a formulation which was derived from the Sunday Times case, para 49, and a number of subsequent decisions of the Strasbourg court. The level of precision required of domestic legislation, as was stated in Hasan and Chaush, para 84, depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. The decision in Purdy was not merely justified by the fact that the crime of assisting suicide can engage articles 2 and 8; it was more because the crime, at least in many cases, has a unique combination of features, all of which point firmly towards a requirement for clear guidance. First, section 2(1) renders it a crime to assist someone else to do an act which is not itself in any way a crime. Secondly the victim is not merely a willing participant, but the instigator. Thirdly, the victims article 8 rights are interfered with unless the crime is committed. Fourthly, the person committing the offence will be a reluctant participant, motivated by compassion for the so called victim, and not by emotions which normally stimulate criminal behaviour. It is true that the last three of these four characteristics are not an inevitable feature of a case of assisting a suicide, but they will all frequently feature in such cases. Indeed, it was because assisting suicide was such an unusual crime that subsection (4) was included in section 2 see Purdy, para 46. Even more centrally, it was because all four characteristics were such likely features of a potential offence under section 2 that Purdy was decided in the way that it was. The requirement for a specific policy was not to protect the interests of those who were contemplating putting pressure on the vulnerable, or seeking to benefit from someones suicide, but to protect the interests of the very people assistance of whose suicide would involve all four characteristics see Purdy, paras 53, 68, 86 and 102. The need for a clear policy in this area is said to be supported by the reasoning of the majority of the Strasbourg court in Gross. It concerned a somewhat different aspect of assisted dying, but the courts emphasis in para 66 on the need for guidelines to avoid a person being in a state of anguish and uncertainty regarding the extent of her right to end her life, seems to me to apply to a case such as those that have given rise to these appeals. I note also the conclusion in para 69 that it was up to the domestic authorities to issue comprehensive and clear legal guidelines as to whether and under which circumstances an individual not suffering from a terminal illness should be granted the ability to acquire a legal dose of medication allowing them to end their life. Martins argument in the second appeal is that, as a result of a lack of clarity in the 2010 Policy, the law relating to the crime of assisting suicide fails to live up to the foreseeability requirement. The lack of clarity is said to arise where a person who has a voluntary, clear, settled and informed wish to die and who requires assistance, is given such assistance by a third party, who is acting purely out of compassion and who has exerted no pressure on the person, but is not a relation or friend, and would often be a doctor or other professional carer. Where the third party is a friend or relation, then in the absence of any aggravating factor, the 2010 Policy indicates that a prosecution would be unlikely, but in any other case the position could fairly be described as more opaque. The evidence suggests that this uncertain state of affairs leads doctors and other professional carers almost always to refuse to give any information or advice to those who wish to end their lives. This degree of caution, although understandable, appears to go too far, and I gladly associate myself with the accurate and helpful guidance given in para 255(2), (3) and (4) of Lord Sumptions judgment. Having said that, Lord Dyson MR and Elias LJ expressed the problem which was said to exist with the 2010 Policy very well at para 140 of the Court of Appeals judgment: How does [the 2010 Policy] apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In short, we accept the submission that the Policy does not provide medical doctors and other professionals with the kind of steer that it provides to relatives and close friends acting out of compassion . Is it appropriate to expect greater foreseeability? Lord Hughes and Lord Kerr rightly point out that (i) the state of the law is clear, indeed could not be clearer, in the sense that any form of assisting a suicide is a crime under the unconditional provisions of section 2, and (ii) the role of the DPP is constitutionally limited, in that it is not, and indeed cannot be, to make the law, let alone to change the law, but to decide how much guidance she can properly give in her policy with regard to prosecutions under section 2(1). We are not therefore in the same area as that which was being discussed in the passages cited from Gross in para 135 above, which was concerned with what conduct would be lawful in Swiss law. Further, any policy which the DPP has (whether published or not) must be applied after the event. In these circumstances, it is inevitable that any policy issued by the DPP has to retain a degree of flexibility: each case has to be assessed after the event by reference to its own particular facts. However, I do not share Lord Hughess concerns about (i) the decision in Purdy (the correctness of which was not challenged by anyone in these appeals), or (ii) the risk of a spill over into other statutory crimes where there is a provision such as section 2(4). As to (i), particularly given the unique combination of features identified in para 133 above, it was appropriate to require the DPP to publish a policy in relation to assisting suicide, given that his existing general code did not satisfactorily apply to that crime. It was not as if the House was seeking to say what that policy should be. As to (ii), although section 2(4) was given weight in Purdy, it is the DPPs general prosecutorial discretion which is the relevant power which gave rise to the decision in that case. More importantly, as already mentioned, it is the unique character of the offence, coupled with the decision in Pretty v UK, which led the House to decide that a specific published policy for assisting suicide was required. Accordingly, we are here concerned with a very unusual crime which is the subject of a specific policy. However, that does not undermine the force of the constitutional argument that it is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy. The purpose of the DPP publishing a code or policy is not to enable those who wish to commit a crime to know in advance whether they will get away with it. It is to ensure that, as far as is possible in practice and appropriate in principle, the DPPs policy is publicly available so that everyone knows what it is, and can see whether it is being applied consistently. While many may regret the fact that the DPPs policy is not clearer than it is in relation to assistance given by people who are neither family members nor close friends of the victim, and while many may believe that the policy should be the same for some categories of people who are not family members or close friends as for those who are, it would not be right for a court in effect to dictate to the DPP what her policy should be. A further point In these circumstances, were it not for one point, I would simply have accepted the DPPs case on the second appeal. However, the matter is not quite so simple in light of what was said by Lord Judge CJ (dissenting on this point) in the Court of Appeal about the 2010 Policy: 185. [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance. 186. Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the victim to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution. For the reasons given by Lord Dyson MR and Elias LJ quoted in para 138 above, I do not agree with Lord Judge CJ that one can spell out of the 2010 Policy the approach which he sets out so clearly in those two paragraphs. However, the important point for present purposes is that what is said in those two paragraphs represents, according to her counsel on instructions, the view of the DPP herself, as to the appropriate policy. If the DPPs policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty, both as a matter of domestic public law and in the light of the Strasbourg jurisprudence as a public authority, to ensure that the confusion is resolved. However, I am of the view that it would not be appropriate, at least at this stage, to make an order which would require the DPP to amend the 2010 Policy. Rather, I think, it is appropriate to leave it to her to review the terms of the 2010 Policy, after consultation if she thinks fit, with a view to amending it so as to reflect the concerns expressed in the judgments of this Court, and any other concerns which she considers it appropriate to accommodate. There are three reasons which persuade me that it would be inappropriate to make any order against the DPP at this stage. First, it is really only as a result of the hearing of this appeal that it has become clear that the 2010 Policy may not reflect the DPPs views. It would therefore be somewhat harsh for the court to impose a duty on her to deal with the problem, as opposed to giving her the opportunity to do so. Secondly, although her agreement with Lord Judge CJs analysis was no doubt considered, the DPP should not be regarded as bound by it. She should have a proper opportunity to consider the 2010 Policy, after making such enquiries as she thinks appropriate. Thirdly, in any event, the contents of any order would either be very vague or they would risk doing that which the court should not do, namely usurping the functions of the DPP, or even of Parliament. Given that, in an important respect, the 2010 Policy does not appear to reflect what the DPP intends, it seems to me inevitable that she will take appropriate steps to deal with the problem, particularly in the light of the impressive way in which her predecessor reacted to the decision in Purdy. However, if the confusion is not sorted out, then, at least in my view, the courts powers could be properly invoked to require appropriate action, but, as I have said, it seems very unlikely that this will be necessary. The contents of the Policy issue (g) In the light of my conclusion in the immediately preceding paragraphs, Martins cross appeal does not arise. Conclusions For the reasons I have given (which are generally the same as those of Lord Mance) I would summarise my conclusions as follows: a) In common with all other members of the Court, I do not consider that section 2 imposes what the Strasbourg court would regard as an impermissible blanket ban on assisted suicide, which would take it outside the margin of appreciation afforded on this issue to member states; c) b) Given that the Strasbourg court has decided that it is for the member states to decide whether their own law on assisted suicide infringes article 8, I consider, in common with other members of the Court, that domestic courts have the constitutional competence to decide the issue whether section 2 infringes article 8; (i) Unlike Lord Sumption, Lord Clarke, Lord Reed and Lord Hughes, I do not consider that it would be institutionally inappropriate, or only institutionally appropriate if Parliament refuses to address the issue, for a domestic court to consider whether section 2 infringes the Convention, but, (ii) Unlike Lady Hale and Lord Kerr, I do not consider that it would be institutionally appropriate for us to determine the issue at this time; d) Notwithstanding the views of Lady Hale and Lord Kerr to the contrary, I am of the view that, quite apart from my view in para (c)(ii), in the light of the evidence and the arguments presented on this appeal the Court is not in a position to decide the issue; In common with all members of the Court, I do not consider that the Court should involve itself with the terms of the DPPs policy on assisted suicide, albeit that I would expect the DPP to clarify her policy. e) In these circumstances, I would dismiss the appeal brought by Mrs Nicklinson and Mr Lamb, allow the appeal brought by the DPP, and dismiss the cross appeal brought by Martin. LORD MANCE I agree generally with the reasoning and conclusions of Lord Neuberger on the appeals by Mrs Nicklinson and Mr Lamb, read with the following observations of my own. On the appeal and cross appeal in the case of Martin, I agree that the Director of Public Prosecutions appeal should be allowed and Martins cross appeal dismissed, for reasons given by Lord Neuberger and Lord Sumption, supplemented by short observations of my own. The appeals by Mrs Nicklinson and Mr Lamb Before us the appeals by Mrs Nicklinson and Mr Lamb have acquired a different focus from that of Mr Nicklinsons case below. Below, Mr Nicklinsons case, as recorded by Toulson LJ in paras 15 and 21 of his judgment in the Divisional Court, was that the only way in which [he] could end his life other than by self starvation would be by voluntary euthanasia. Although a statement had been produced by a North Australian doctor, Dr Nitschke, to the effect that it would be technologically possible for Mr Nicklinson to take the final step of initiating suicide with the aid of a machine which Dr Nitschke has invented, pre loaded with lethal drugs and capable of being digitally activated by Mr Nicklinson by a blink of his eye (para 16), Toulson LJ went on to say that In these circumstances [Mr Nicklinson] wants to be able to choose to end his life by voluntary euthanasia at a moment of his choosing (para 17); and he added that, although Dr Nitschkes evidence meant that the claim that s.2 of the Suicide Act 1961 was incompatible with article 8 of the Convention was not entirely academic, the main part of the argument on Mr Nicklinsons behalf under article 8 was directed to establishing that it requires voluntary active euthanasia to be permitted by law (para 21). In the Divisional Court (para 122) and Court of Appeal (para 105), the cases of R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800 and Pretty v United Kingdom (2002) 35 EHRR 1 were treated as binding on the issue whether the blanket ban contained in s.2 of the Suicide Act is compatible with the Convention as interpreted by the Strasbourg court. The Court of Appeal added the caveat that the court must also satisfy itself as to the proportionality of the ban as a matter of domestic law (para 110), but concluded that in a case like this, it would be improper for a court to find a blanket prohibition disproportionate where this is not dictated by Strasbourg jurisprudence (para 111). In the courts below, therefore, the main focus was on Mr Nicklinsons submissions that necessity should be recognised as a defence to murder at common law and/or in the light of article 8 of the European Convention on Human Rights. That case is not now pursued. The case now advanced is that a machine like Dr Nitschkes would offer a feasible means of suicide, and that the prohibition on assisting suicide in s.2(1) of the Suicide Act 1961, as amended by s.59 of the Coroners and Justice Act 2009, should be read down to permit this assistance to be volunteered, or if that is not possible that the prohibition should be declared incompatible with article 8 of the Convention on Human Rights. In my opinion the decision of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 establishes at the international level that it is within the margin of appreciation of Member States of the Council of Europe to legislate in terms involving a blanket prohibition of assisted suicide. More recent cases, such as Haas v Switzerland (2011) 53 EHRR 33, Koch v Germany (2013) 56 EHRR 6 and Gross v Switzerland (2014) 58 EHRR 7 throw no doubt on this, since they concern either a state (Switzerland) which permits assisted suicide or a state (Germany) whose courts had acted contrary to article 6 of the Convention by refusing even to address the issue. It is of interest to compare the European Court of Human Rights decision in Pretty with the majority reasoning of the United States Supreme Court in Washington v Glucksberg 521 U.S. 702 (1997). The United States Supreme Court was concerned with the due process clause in the American Constitution, under which a wide range of fundamental liberties has in the past been recognised, including the right to marry, to have and direct the upbringing of children and to have an abortion (Roe v Wade 410 U.S. 113 (1973) and Planned Parenthood v Casey 505 U.S. 833 (1992) and the right to refuse unwanted lifesaving medical treatment (Cruzen v Director, Missouri Dept. of Health 497 U.S. 261 (1990). It held that the right to due process did not extend to a right to commit assisted suicide, and that the State of Washingtons blanket prohibition on assisted suicide was accordingly not unconstitutional. It noted that the overwhelming majority of States prohibited assisted suicide, some after quite recent debates about it, but it also noted that voters in Oregon had in 1994 enacted a Death with Dignity Act legalising physician assisted suicide for competent, terminally ill adults (p 717). Its comment was that this showed that the States are currently engaged in serious, thoughtful examination of physician assisted suicide and other similar issues (p 719). It is a comment of some relevance in my opinion to the position in which this Court finds itself in relation to Parliament, a subject to which I shall return. I do not read paragraph 76 of the European Court of Human Rights judgment in Pretty as suggesting that a blanket prohibition may be incompatible with article 8 at the international level. I agree with Lord Neubergers analysis in his paragraphs 62 to 65. When the European Court of Human Rights said in paragraph 76 in Pretty that: It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. it was, as I see it, reaffirming the legitimacy (at the international level and bearing in mind the margin of appreciation) of a blanket prohibition, but recognising that, at the subsequent stage of enforcement and adjudication, some flexibility in approach was appropriate. In Purdy, at para 74, Lord Brown thought it implicit in the Courts reasoning in Pretty v United Kingdom that in certain cases, not merely will it be appropriate not to prosecute, but a prosecution under section 2(1) would actually be inappropriate. He went on: If in practice the ban were to operate on a blanket basis, the only relaxation in its impact being by way of merciful sentences on some occasions when it is disobeyed, that would hardly give sufficient weight to the article 8 rights with which the ban, if obeyed, is acknowledged to interfere. The emphasis in this passage is on the distinction between merciful sentencing and the decisions not to prosecute at all which the Director is expressly authorised to take under s.2(4). The passage does not suggest that a blanket ban is in principle impermissible (if it did, it would be contrary to much else that the Court said in Pretty v United Kingdom and later cases). It is recognising the exercise of the Directors discretion under s.2(4) as an important concomitant of the blanket ban in the United Kingdom context. But it is a concomitant, not intended to undermine or qualify the legitimacy of the blanket prohibition, but directed to the treatment of those who infringe it. In Haas, para 55, the Court observed that the vast majority of member States seem to attach more weight to the protection of the individuals life than to his or her right to terminate it. It follows that the States enjoy a considerable margin of appreciation in this area. In Koch v Germany (2013) 56 EHRR 6, para 70, the Court repeated its reference to a considerable margin of appreciation. It is, in these circumstances, important to note how the Court put the position under article 8 in Haas at para 51, and repeated it in Koch, para 52 and Gross, para 59. It said that, in the light of the previous case law: an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. It would be wrong in my view to deduce from this that the Strasbourg jurisprudence accepts that those capable of freely reaching a decision to end their lives, but physically incapable of bringing that about by themselves, have a prima facie right to obtain voluntary assistance, which is now the issue in this case, to achieve their wish. article 8.1 is, on the authority of Pretty v United Kingdom, engaged in this area. But it does not by itself create a right. A right only exists (at least in any coherent sense) if and when it is concluded under article 8.2 that there is no justification for a ban or restriction. Autonomy is an important value. But, as soon as the giving of assistance to those physically incapable of committing suicide without assistance comes into question, other factors, in particular the wider implications for third parties (not just the voluntary assister), also require consideration. The European Court of Human Rights words capable of . acting in consequence were carefully devised. To distinguish in this respect between those capable of committing suicide by themselves and others is not unjustifiably to discriminate against the latter. A submission to contrary effect was rejected by the House of Lords in R (Pretty), where Lord Bingham said: She contends that the section is discriminatory because it prevents the disabled, but not the able bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. A similar answer was also given by the European Court of Human Rights in Pretty v United Kingdom. In relation to the applicants complaint that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide (para 86), the Court said: 87. For the purposes of article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi vs the Netherlands, no. 28369/95, 37, ECHR 2000 X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos vs Greece [GC], no. 34369/97, 44, ECHR 2000 IV). 88. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. It follows from the margin of appreciation which exists at the international level that it is for domestic courts to examine the merits of any claim to receive assistance to commit suicide: see Koch, para 71. The United Kingdom position is on the face of it clear. Parliament has legislated for a blanket prohibition, combined with a discretion on the part of the Director of Public Prosecutors to decide whether in any particular case to prosecute. Pursuant to the House of Lords decision in R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, the Director has issued his 2010 Policy statement, set out in Lord Neubergers judgment at paras 46 and 47. As the Court of Appeal noted (para 110), the fact that Parliament has legislated a blanket ban is not the end of the matter as far as United Kingdom courts are concerned. Under the Human Rights Act 1998, it is the courts role to consider United Kingdom legislation in the light of the Convention rights scheduled to that Act. Where a considerable margin of appreciation exists at the international level, both the legislature and the judiciary have a potential role in assessing whether the law is at the domestic level compatible with such rights. That means considering whether a blanket prohibition is in accordance with law, in the sense that it not only meets a legitimate aim, but does so in a way which is necessary and proportionate. The legislators choice is not necessarily the end of the matter: see In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173. At this point, however, questions of institutional competence arise at the domestic level. The interpretation and ambit of s.2 are on their face clear and general, and whether they should be read down or declared incompatible in the light of article 8 raises difficult and sensitive issues. Context is all, and these may well be issues with which a court is less well equipped and Parliament is better equipped to address than is the case with other, more familiar issues. On some issues, personal liberty and access to justice being prime examples, the judiciary can claim greater expertise than it can on some others. The same applies to the legislature even though I fully accept, that, while the legislature is there to reflect the democratic will of the majority, the judiciary is there to protect minority interests, and to ensure the fair and equal treatment of all. Whether a statutory prohibition is proportionate is, in my view, a question in the answering of which it may well be appropriate to give very significant weight to the judgments and choices arrived at by the legislator, particularly when dealing with primary legislation. In their impressive judgments in the courts below, Toulson LJ (at paras 57 to 62 and 75 to 84) and Lord Dyson MR (at paras 49 and 56 to 60) cited extensively from prior authority cautioning against courts interference in difficult ethical and social issues better fitted for Parliamentary resolution under our democratic traditions. One such case was Airedale NGHS Trust vs Bland [1992] UKHL 5; [1993] AC 789, where the House of Lords addressed the narrow but vital distinction between mercy killing and the discontinuance of life sustaining measures in the context of an application to discontinue measures of the latter kind in respect of a patient in a permanent vegetative state. In this context, Lord Browne Wilkinson said (p.880A B) that it is not for the judges to seek to develop new, all embracing, principles of law in a way which reflects the individual judges moral stance when society as a whole is substantially divided on the relevant moral issues (p 880A B per Lord Brown Wilkinson Lord Mustill said (p.890G 891C): These are only fragments of a much wider nest of questions, all entirely ethical in content, beginning with the most general "Is it ever right to terminate the life of a patient, with or without his consent?" I believe that adversarial proceedings, even with the help of an amicus curiae, are not the right vehicle for the discussion of this broad and highly contentious moral issue, nor do I believe that the judges are best fitted to carry it out. On the latter aspect I would adopt the very blunt words of Scalia J. in Cruzan vs Director, Missouri Department of Health (1990) 110 S.Ct. 2841, 2859, where a very similar problem arose in a different constitutional and legal framework. These are problems properly decided by the citizens, through their elected representatives, not by the courts. My Lords, I believe that I have said enough to explain why, from the outset, I have felt serious doubts about whether this question is justiciable, not in the technical sense, but in the sense of being a proper subject for legal adjudication. The whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the general criminal law, but also of a sound procedural framework within which the rules can be applied to individual cases. The rapid advance of medical technology makes this an ever more urgent task, and I venture to hope that Parliament will soon take it in hand. Meanwhile, the present case cannot wait. We must ascertain the current state of the law and see whether it can be reconciled with the conduct which the doctors propose. In that case, as Lord Mustills final sentences indicate, the House had to address the point under the law as it then stood. I note however that the United States Supreme Court reached a similar result in another decision under the due process clause: Vacco v Quill 521 U.S. 793 (1997), handed down on the same day as Washington v Glucksberg. Rejecting an argument that the State of New Yorks ban on assisted suicide by the prescription of lethal medication to mentally competent, terminally ill patients suffering great pain was unconstitutional, the Supreme Court said that the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognised and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational (pp 800 801), and that even though the line between the two may not be clear, . certainty is not required, even were it possible (p 808). In the present appeal, current United Kingdom law is clear. Prior to the Human Rights Act 1998 that would have been the end of the matter. The question is how far the Human Rights Act requires a different approach. It is in my view a mistake to approach proportionality as a test under the Human Rights Act which is insensitive to considerations of institutional competence and legitimacy. The qualifying objectives reflected in article 8.2 of the Convention can engage responsibilities normally attaching in the first instance to other branches of the state, whether the executive or the legislature. When considering whether a particular measure is necessary and all the more when considering whether it is justified on a balancing of competing and often incommensurate interests, courts should recognise that there can still be wisdom and relevance in the factors mentioned in the preceding two paragraphs. This is all the more so when the court is considering the scope of the Convention rights, as enacted domestically, in a situation, like the present, which the European Court of Human Rights has held to fall within the United Kingdoms international margin of appreciation. That Parliament has regularly addressed the general area and is still actively engaged in considering associated issues in the context of Lord Falconers Assisted Dying Bill 2013 underlines the significance of the point. This does not mean that there is a legal rule that courts will not intervene (as to which see Lord Steyn, extra judicially in Deference: A Tangled Story, [2005] PL 345, commenting on R (ProLife Alliance) v British Broadcasting Corp [2003] UKHL 23, [2004] 1 AC 185, paras 74 77 per Lord Hoffmann) or that the courts have no role. It means merely that some judgments on issues such as the comparative acceptability of differing disadvantages, risks and benefits have to be and are made by those other branches of the state in the performance of their everyday roles, and that courts cannot and should not act, and do not have the competence to act, as a primary decision maker in every situation. Proportionality should in this respect be seen as a flexible doctrine. That institutional competence is important in the context of judgments made on issues of proportionality has been recognised in a series of cases: see e.g. A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, paras 29 and 38 39, per Lord Bingham, R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, para 34, per Lord Bingham, R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312, para 53, per Lady Hale, R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] 1 AC 719, para 45, per Lord Bingham (the passage quoted by Lord Neuberger in his para 102) and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, paras 68 76 per Lord Reed, with whose observations in these paragraphs Lord Sumption, Lady Hale, Lord Kerr and Lord Clarke agreed at para 20 and Lord Neuberger agreed at para 166. Lord Reeds observations, worth study in their entirety, included the following: 71. An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs. Those are not however the only relevant factors. One important factor in relation to the Convention is that the Strasbourg court recognises that it may be less well placed than a national court to decide whether an appropriate balance has been struck in the particular national context. For that reason, in the Convention case law the principle of proportionality is indissolubly linked to the concept of the margin of appreciation. That concept does not apply in the same way at the national level, where the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend on the context, and will in part reflect national traditions and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg court. 74. The judgment of Dickson CJ in Oakes (R v Oakes [1986] 1 SCR 103) provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in de Freitas (de Freitas v Permanent Secretary if Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69), and the fourth reflects the additional observation made in Huang (Huang v Secretary of State for the Home Department [2007] 2 AC 167). I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. 75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd [1986] 2 SCR 713, 781 782 that the limitation of the protected right must be one that it was reasonable for the legislature to impose, and that the courts were not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173, 188189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a least restrictive means test would allow only one legislative response to an objective that involved limiting a protected right. 76. In relation to the fourth criterion, there is a meaningful distinction to be drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four). As Lord Reed also observed at para 69: 69. Proportionality has become one of the general principles of EU law, and appears in article 5(4) of the EU Treaty. The test is expressed in more compressed and general terms than in German or Canadian law, and the relevant jurisprudence is not always clear, at least to a reader from a common law tradition. In R v Ministry of Agriculture, Fisheries and Food, Ex p Fedesa (Case C 331/88) [1990] ECR I 4023, the European Court of Justice stated, at para 13): The court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. The intensity with which the test is applied that is to say, the degree of weight or respect given to the assessment of the primary decision maker depends on the context. The flexibility of proportionality in the parallel context of European Union law was underlined in the Court of Appeal with regard to legislative choices made by a minister in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] 2 QB 394 (see especially at paras 126 134 and 203 per Arden LJ and Lord Neuberger MR, respectively) and was, still more recently, underlined in my judgment (in which Lord Neuberger and Lord Clarke joined) in Kennedy v The Charity Commission [2014] UKSC 20, para 54. It is also demonstrated instructively in the context of Convention law in an article by Julian Rivers, Proportionality and Variable Intensity of Review (2006) 65 CLJ 174. The main justification advanced for an absolute prohibition on assisting suicide, even in cases as tragic as Mr Nicklinsons and Mr Lambs, is the perceived risk to the lives of other, vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so. The relevant measure is the prohibition, which on this basis has a legitimate aim. Whether it is rationally connected to that aim depends upon the existence of the perceived risk. Whether it is necessary depends upon whether a lesser measure would have achieved, or at least not unacceptably have compromised, the aim. Whether it is proportionate depends upon identifying what the measure achieves and balancing this against the consequences for other interests. These four stages, derived from the passage in Lord Reeds judgment in Bank Mellat quoted in para 168 above, are analytically useful. They are also subject to some modification in particular contexts, not here directly relevant. (For example, the third stage may not apply in quite the same way under article 1 of Protocol No 1.) The third and fourth stages may raise potentially overlapping considerations, but the distinction between them is important. The third asks whether the aim could have been achieved without significant compromise by some less intrusive measure. The fourth involves the critical exercise of balancing the advantages of achieving the aim in the way chosen by the measure against the disadvantages to other interests. This balancing exercise, often involving the weighing of quite different rights or interests, is a core feature of the courts role, and can be described as involving proportionality in the strict sense of that word. How intensely the court will undertake the exercise, and to what extent the court will attach weight to the judgment of the primary decision maker (be it legislature or executive), depends at each stage on the context, in particular the nature of the measure and of the respective rights or interests involved. The primary decision makers choices as to the aim to adopt and the measure to achieve it may be entitled to considerable respect. But at the fourth stage other interests may come into play, the intrinsic and comparative weight of which the court may be as well or even better placed to judge in the light of all the material put before it. The existence of a risk to other vulnerable individuals is a premise of the decisions of the European Court of Human Rights at the international level. Thus, in Pretty v United Kingdom, para 74, the Court said of s.2(1) of the Suicide Act 1961: Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. Further, at the United Kingdom domestic level, the existence of such a risk was also accepted by the House of Lords in R (Pretty) as an alternative ground of decision if article 8.1 was engaged. It is submitted on the present appeal that developments and further evidence available since the Pretty v United Kingdom and Purdy cases require the Supreme Court to reach a conclusion opposite to its considered view in R (Pretty) (which also formed the starting point for its decision in Purdy) that the blanket prohibition in s.2(1) was proportionate. As to this, first, I do not consider that either the reasoning on legal or other issues or the decision in Pretty v United Kingdom and the more recent Strasbourg cases of Haas, Koch and Gross or the Houses reasoning or decision in Purdy affect the view expressed on this point in R (Pretty). The experience acquired regarding the s.2(4) discretion does not mean that the principle needs reconsideration. Of 85 cases referred to the CPS between 1 April 2009 and 1 October 2013, 64 were not proceeded with and 11 were withdrawn. 9 are ongoing and only 1 has been successfully prosecuted. The Directors discretion is evidently effective to avoid prosecutions which would serve no useful purpose after the event, but these figures do not appear to me to bear on the appropriateness of the blanket prohibition or on risks that could develop without it. I would accept that it is in principle open to claimants in the position of the appellants to invite a court to revisit an issue of proportionality previously decided between different parties in the light of different evidence, and, further, that this would not involve inviting the Supreme Court to depart precedentially from Purdy. Proportionality is here a judgment reached in the light of evidence, so that it is capable of being re litigated in this way, although courts should no doubt discourage such re litigation in the absence of fresh and significantly different evidence. However, examination of the course of the present case raises in my view serious questions about its suitability for any such exercise. At no stage does this litigation appear to have been approached on the basis that the court should hear primary evidence about the issues. There has been nothing like the wide ranging examination of expert and statistical material concerning suicide and the psychological factors and risks bearing on its occurrence which appears to have informed the United States Supreme Courts judgments in Washington v Glucksberg. Much of the material put before the Supreme Court on the present appeal has been second hand, adduced in other litigation or by other inquiries. Thus Toulson LJ, when referring to the January 2012 report of the Commission on Assisted Dying chaired by Lord Falconer, said (para 24): We were asked to read the report and have done so. However, it is important to stress that it was not an officially appointed commission. Its report contains an interesting analysis of arguments and views, but it would not be right for the court to treat it as having some form of official or quasi official status. The report in fact records that some prominent individuals and organisations that are fundamentally opposed to any form of assisted dying being legally permitted in the UK refused to participate in giving evidence (p.39). Toulson LJ also records (para 25) that after judgment was given at first instance by Smith J in Carter v Canada [2012] BCSC 886, counsel for Mr Nicklinson applied for leave to introduce the evidence in that case into the present case, recognising that, if it were admitted, there would have to be a further hearing in order to enable the witnesses to be called and cross examined. Similarly, before the Court of Appeal counsel accepted that determination of the question whether there had been a disproportionate interference with article 8 rights would involve consideration of a vast array of detailed evidence, including sociological, philosophical and medical material, which would have to be conducted by the Divisional Court. Before the Supreme Court, on the other hand, the appellants primary case has become not to invite the Supreme Court to embark upon a close study of the evidence that is now available of the relative risks and advantages of relaxing the prohibitions on assisted suicide, but instead to submit that the Supreme Court can strike the necessary balance without such a forensic exercise because it has been conducted already by a number of expert bodies whose conclusions are remarkably similar and upon whose conclusions the Court can place weight. In the alternative, if the Court considers that it cannot carry out the balancing exercise without further exploration of the underlying evidential issues, they repeat their request that the case should be remitted to the High Court for that exercise to be conducted along the lines of that in Carter v Canada [2012] BCSC 886, with appropriate guidance as to how the balancing exercise is to be conducted. The appellants primary case before the Supreme Court amounts in substance to an invitation to short cut potentially sensitive and difficult issues of fact and expertise, by relying on secondary material. There can in my opinion be no question of doing that. Their secondary case (their primary case below) is that the case should in effect re commence from the beginning with directions for evidence to be called and examined on the relevant issues of fact. But the handing down of the first instance decision in Carter v Canada shortly before the Divisional Court hearing is not a justification for not applying at the outset for a trial of the relevant issues on the basis of evidence directly examined before the court. The main basis relied upon for departing from the view expressed in Pretty is the fresh evidence said to have been gained in the meantime. That comes, first, from those few states where assisted suicide is lawful (Switzerland, Oregon, Vermont and Montana) or where both euthanasia and assisted suicide are lawful (the Netherlands, Belgium and Luxembourg), and, second, from other sources, such as the Falconer Commission on Assisted Dying (January 2012), the Royal Society of Canada (RSC) Expert Panel on End of Life Decision Making (2011), the Quebec Dying with Dignity Select Committee Report (March 2012) and the examination of the issue by Smith J at first instance in Carter v Canada [2012] BCSC 886 (over ruled at [2013] BCCA 435 on the ground that the issue was covered by the prior authority of Rodriguez v British Columbia (Attorney General) [1993] 3 S.C.R. 519). As I have already noted, the Falconer Commission did not receive (though it would have liked to) the evidence of committed opponents of the idea of assisted suicide, and some of the other evidence is open to the comment that it was commissioned by or involved persons already on record as committed to a change in the law. In Carter v Canada, where both claimants suffered from intractable and progressive diseases, the RSC Report was also tendered without there being the opportunity to cross examine its makers. The Government of Canada criticised it as essentially argument on one side of the debate (and largely legal argument), rather than a balanced or comprehensive review of the issues, and noted that three of the authors were expert witnesses for the plaintiffs, while a fourth author had been assisting the plaintiffs with instructing expert witnesses. Canada also called another Fellow of the Royal Society of Canada, who said that, in his view, the RSC Report reads as though it was written with a pre ordained conclusion, commented on the rapidity with which the panel had proceeded, and noted that its membership lacked representation from the palliative care community, and included persons who had previously expressed views supportive of physician assisted dying. In the event, Smith J said this: [129] I have now reviewed the RSC Report and have concluded that it will be admitted in evidence, in the main for the fact that the expert panel made the recommendations that it did. I have not relied upon it as evidence on any contentious matters such as the efficacy of safeguards in jurisdictions that permit physician assisted dying. Its review of the legal landscape regarding end of life care in Canada is not evidence, but the equivalent of a law review article or a legal text. In Rodriguez every judge at every level had agreed that the purpose of protecting vulnerable persons from inducement to commit suicide was pressing and substantial, and it was also held that the prohibition on assisted suicide was rationally connected to that purpose. No challenge was made to either conclusion in Carter v Canada. The issue there was focused on whether the prohibition was the minimum step necessary and was proportionate in the pursuit of that purpose. Smith J said that considerable deference was due to Parliament on that issue, but that this did not relieve the court of its role in assessing such matters. Ultimately, she concluded: 1267. With respect to the absolute prohibitions alleged salutary effects in preventing wrongful deaths, or in preventing abuse of vulnerable people, my review of the evidence from Canada and elsewhere leaves me unconvinced that an absolute prohibition has that effect in comparison with a prohibition combined with stringently limited exceptions. On that basis, she concluded: the benefits of the impugned law are not worth the costs of the rights limitations they create (para 1285). It is in my view clear from the judgment at first instance in Carter v Canada and from even the superficial examination of the evidence which the appellants now in effect invite as their primary case (paragraph 175 above) that it would be impossible for this Court to arrive at any reliable conclusion about the validity of any risks involved in relaxing the absolute prohibition on assisting suicide, or (which is surely another side of the same coin) the nature or reliability of any safeguards which might accompany and make possible such a relaxation, without detailed examination of first hand evidence, accompanied by cross examination. This has not occurred in this case, but, in its absence, I do not see how one can accept the appellants submission that the circumstances have so changed that R (Pretty) v Director of Public Prosecutions should now no longer be followed. Whatever else may be said about the evidential position, it is not in my opinion sustainable to suggest that there is no evidence and to describe as ruminations a conclusion that permitting assisted suicide in the case of persons in Mr Nicklinsons and Mr Lambs position would pose a relevant risk to vulnerable people (compare paras 349 to 351 of Lord Kerrs opinion). There is a rational connection between the current prohibition in s.2(1) and its aim. As I have already mentioned, both R (Pretty) and Pretty v United Kingdom proceed on that basis. So too, the United States Supreme Court in Renquist CJs forceful majority judgment in Washington v Glucksberg regarded it as unquestionable that the State of Washingtons ban on assisted suicide was rationally related to legitimate government interests (p 728). I also note that Lord Joff himself, when moving the second reading of his Assisted Dying for the Terminally Ill Bill on 12 May 2006 (Hansard, col 1188) said: When I gave evidence to the Select Committee about the original Bill, I expressed my personal conviction, which was honestly held at the time, that I would welcome a widening of the scope of the legislation. I no longer hold that view. One of the advantages of the Select Committee process was the opportunity to see different regimes in operation, and to hear a wealth of evidence from those who have thought deeply about the issues and are intimately involved in them. At the end of the process, it is now my firm view that the extent of legislative change that I put before the House today . will have the most advantage and carry the least risk. I would not support further extension into the field of euthanasia, or support assisted dying for patients who are not terminally ill. Others, of course, may have different views, but after three years of legislative effort on the subject, I have no intention of pursuing this issue beyond the ambit of the present Bill. The Falconer Commission also concluded that it could only recommend a relaxation of s.2 of the Suicide Act in respect of the terminally ill, and Lord Falconers bill, like Lord Joffes bill was so confined (though the End of Life Assistance (Scotland) Bill introduced in Scotland in January 2010 and defeated by 18 votes to 16 in December 2010 covered persons (a) diagnosed as terminally ill and finding life intolerable or (b) permanently physically incapacitated to such an extent as not to be able to live independently and finding life intolerable). The Falconer Commission heard evidence about and accepted the risks of any greater extension. It said in its summary of its conclusions at p.27: The Commission accepts that there is a real risk that some individuals might come under pressure to request an assisted death if this option should become available, including direct pressures from family members or medical professionals, indirect pressures caused by societal discrimination or lack of availability of resources for care and support, and self imposed pressures that could result from the individuals having low self worth or feeling themselves to be a burden on others. Giving a specific example, the Falconer Commission recorded at p.201 the evidence of Professor Raymond Tallis representing Healthcare Professionals for Assisted Dying, who cautioned against any such extension, with the words: I think that there are genuine dangers in extending the scope of assisted dying to people who are not terminally ill, who are disabled. All those things that disability groups fear, I think that it would certainly play into those appropriate fears. The Falconer Commission also received evidence from many disabled people and does not consider that it would be acceptable to recommend that a non terminally ill person with significant physical impairments should be made eligible under any future legislation to request assistance in ending his or her life (p.27). Finally, the Falconer Commission reported (p.323): The Commission was unable to reach a consensus on the issue of whether a person who has had a catastrophically life changing event that has caused them to be profoundly incapacitated should be able to request an assisted death, and we consider that this lack of consensus reflects the mixed views of society on this issue. Bearing in mind the considerable concerns of many disabled people about such a provision, we have recommended that it would not be appropriate for such a provision to be included in future legislation. The most persuasive case that may be made on behalf of persons in the tragic positions of Mr Nicklinson or Mr Lamb is that they represent a distinct and relatively small group, within which it should be possible to identify in advance by a careful prior review (possibly involving the court as well as medical opinion) those capable of forming a free and informed decision to commit suicide and distinguish them from those who might be vulnerable; and that, on this basis, any risks associated with other groups, or with any proposal that might be made to allow assisted suicide within other groups, can and should be disregarded. On such a basis, it may be argued that the current blanket prohibition is unnecessary or disproportionate. The present position is that some persons (whether or not capable of committing suicide unaided) are assisted to do so (unlawfully though it be) without any such prior review. Further, decisions such as Bland to which I have referred in para 165 above and the further cases referred to by Lord Neuberger in paras 21 to 26 and 98 show that the law and courts are already deeply engaged in issues of life and death. Lord Neuberger also shows in paras 92 to 97 that assisting a suicide could be seen not only as promoting the autonomy of the person committing suicide, but also as involving a less drastic interference in life than some interferences already authorised by law, and conceivably also as enabling some people to postpone suicide. A system permitting assisted suicide in limited circumstances such as the present after careful prior review could on its face have some positive benefits when compared with the current blanket prohibition, coupled with the de facto occurrence of assisted suicides in relation to which the Director of Public Prosecution has to undertake the more difficult task after the event of deciding whether the suicide assisted was the result of a voluntary, clear, settled and informed decision: see the Directors guideline number 1 tending to weigh against, and guideline number 4 weighing in favour of, prosecution. The case which I have outlined in the previous paragraph in favour of a relaxing of the prohibition on assisted suicide is not however one on which even the Falconer Commission was able to reach agreement, and it would at the very least require detailed expert investigation and evidence before its premises could be accepted. This is so, quite apart from any argument that it would be difficult if not impossible to determine what should be the ambit of the persons who should be entitled to take advantage of any relaxation of the current prohibition difficult in particular to draw the line between the sort of unbearable suffering which persons in the position of Mr Nicklinson and Mr Lamb undergo and the suffering which others not subject to their physical disability may subjectively feel (which would in turn raise the question what is meant by unbearable suffering, touched on by the Falconer Commission at pp.202 203.) Toulson LJ (at paras 85 to 86) observed correctly that the courts could not themselves fashion any scheme which would define circumstances in which or safeguards subject to which assisted suicide might be appropriate. By the same token, it is impossible, at least on present material, to say with confidence in advance that any such scheme could satisfactorily and appropriately be fashioned. This militates strongly against the courts intervening in this area, at least at this stage, to declare s.2 incompatible at the domestic level, when it is compatible at the international level. In saying this, I note that the Joint Committee on Human Rights in its Seventh Report of Session 2002 2003 (HL Paper 74, HC 547) and Twelfth Report of Session 2003 2004 (HL Paper 93, HC 603) was in each case generally content with the safeguards proposed in respect of assisted suicide of the terminally ill in Lord Joffs bill. But the terminally ill represent a different group which may call for different safeguards from those which the present would require; the current focus of legislative proposals on the terminally ill may also be influenced by the thought that, since their life expectancy is short, the consequences of any risks materialising of the sort identified by the Falconer Commission at p 27 (para 185 above) may be seen as less serious. Moreover, any assessment of evidence about risks and potential safeguards must inevitably raise questions regarding the degree of residual risk which is acceptable in this present context. In Carter v Canada (paras 1196 1199) the Government of Canadas argument, that the legislation was justified because its purpose was to eliminate all risk, was, not surprisingly, rejected. But any relaxation of the present blanket prohibition would require value judgments of difficulty and delicacy in particular, how much risk would attach to and be acceptable in consequence of a relaxation coupled with the introduction of safeguards, and how such risk should be measured against the benefits to persons such as Mr Nicklinson and Mr Lamb, in relation to whom it may be said with certainty that they formed their wish to commit suicide with clear and independent minds, so that there was and is no such risk. The issue at this point is primarily how to assess and balance the factors bearing on acceptability and proportionality which arise for consideration at the third and/or fourth stages of the exercise identified by Lord Reed in Bank Mellat, para 74. As in the different context of Sinclair Collis, so too here I think that the legislators assessment of the value of the evidence and of the choices to be made in its light is entitled to considerable weight, even if the evidence appears to a court weaker and less conclusive than it might be: see e.g. Sinclair Collis, paras 161, per Arden LJ, and 236 239 and 255, per Lord Neuberger MR. In these circumstances, the position has not been shown by any convincing evidence to have changed materially since R (Pretty) v Director of Public Prosecutions, and I would refuse to make a declaration of incompatibility. In the light of the way in which it has been presented and pursued, remission to the Divisional Court would not be appropriate. To remit would in reality amount to ordering the case to begin over again with a fresh first instance investigation involving a full examination of expert evidence. I see no basis for that exceptional course. I am also influenced in the view that this is not an appropriate time to contemplate such an investigation by, firstly, the very frequent consideration that Parliament has given to the subject over recent years (see Lord Neubergers judgment, para 51) and by, secondly, the knowledge that Parliament currently has before it the Assisted Dying Bill and the hope that this may also give Parliament an opportunity to consider the plight of individuals in the position of Mr Nicklinson and Mr Lamb. Parliament has to date taken a clear stance, but this will give Parliament the opportunity to confirm, alter or develop its position. I would, in particular, associate myself at this point with Lord Neubergers conclusions at paras 110 to 117 of his judgment. While I would, like him, not rule out the future possibility of a further application, I would, as matters presently stand, adapt to the present context a thought which Renquist CJ expressed in a slightly different context in Washington v Glucksberg, p 735: that there is currently an earnest and profound debate about the morality, legality, and practicality of . assisted suicide and [o]ur holding permits this debate to continue, as it should in a democratic society. Parliament is certainly the preferable forum in which any decision should be made, after full investigation and consideration, in a manner which will command popular acceptance. However, (and as is implicit in paras 164 et seq above) this does not mean that I agree with Lord Sumptions view that it would be unconstitutional for the courts to consider in the present context whether Parliaments ultimate decision meets the requirements of the Convention rights scheduled to the Human Rights Act 1998, or that, in considering this, the courts role is limited to assessing the rationality of Parliaments decision, as I understand that paras 230, 233 and 234 of Lord Sumptions judgment may suggest. Ultimately, Parliament has itself assigned to the courts a constitutional role in balancing the relevant interests, public and private. Lord Sumption accepts that, in performing this role, courts may up to a point be required to confront the moral consequences of their decisions (para 233). But, although judges must work within a framework of legal principle, reasoning and precedent, very little, if any, judicial decision making, especially at an appellate level, is or ought to be separated from a consideration of what is just or fair, and the balancing of interests required under the Human Rights Convention merely underlines this. In circumstances such as the present, it may be incumbent on a court to weigh social risks to the wider public and the moral convictions of a body of members of the public together with values of human autonomy and of human dignity in life and death advocated by other members, and in doing so it will attach great significance to the judgment of the democratically informed legislature. But Lord Sumptions view that that legislative judgment must, in the present social and moral context, necessarily be determinative, reminds me of a submission raised by the Attorney General and rejected by the House of Lords in a political context in A v Secretary of State for the Home Department [2005] 2 AC 68, paras 37 42, where Lord Bingham said (para 42): I do not in particular accept the distinction which [the Attorney General] drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it The courts are charged by Parliament with delineating the boundaries of a rights based democracy (Judicial Deference: servility, civility or institutional capacity? [2003] PL 592, 597). The appeal and cross appeal in Martins case. In Purdy the House held the Director was under a duty to clarify his position as to the factors which he regarded as relevant for and against prosecution in such a case and was required to promulgate an offence specific policy identifying the facts and circumstances which he would take into account in deciding whether a prosecution should be brought. The criticism made of the current 2010 policy is that factor (14) recited as favouring prosecution (viz, that the suspect was acting in his or her capacity as a healthcare professional and the victim was in his or her care) leaves unclear the Directors policy in a case where such a professional, without previous influence or authority over the person proposing to commit suicide, renders assistance to that end in the period immediately before the suicide, motivated by compassion. In the Court of Appeal, Lord Judge CJ, in an interpretation which the Director expressly endorsed before the Supreme Court, explained (para 185) that factor (14) was not intended to embrace healthcare professionals brought in from outside, without previous influence or authority over the victim, or his family, for the simply purpose of assisting the suicide after the victim has reached his or her own settled decision to end life. I agree with both Lord Neuberger and Lord Sumption that it is not clear that factor (14) has this significance. But I would not order the Director to clarify it in the sense explained by the Director. As Lord Sumption observes, it is open to question whether the sense confirmed by the Director before the Supreme Court would on consideration prove to be consistent with other aspects of the Directors policy, particularly those arising from factors (6), (12), (13) and (16) set out as favouring prosecution. I agree with Lord Neuberger and Lord Sumption that there is nothing on the face of the policy as it presently stands which is open to objection, and that the only appropriate course, in the light of the discussion and submissions before this Court, is that the Director should be left to consider the position and either confirm or reformulate her policy, as she may then decide. I have considered Lord Sumptions summary of the current legal position in his para 255. The second sentence of para (1) of that summary may be open to different interpretations, and I have stated my own approach to s.2(1) of the Suicide Act in this judgment. In all other respects, I find useful and agree with Lord Sumptions summary. I would therefore allow the Directors appeal and dismiss Martins cross appeal. I would leave her to review her published policy in the light of the judgments given on this appeal, and to confirm or reformulate it as she may or may not then decide to be appropriate. LORD WILSON At the end of the six months in which all the members of this court have deliberated upon these appeals with an intensity unique in my experience, I find myself in agreement with the judgment of Lord Neuberger. I regard his crucial conclusions on the first appeal as the following: (a) The evidence before the court is not such as to enable it to declare that section 2(1) of the 1961 Act either was incompatible with the rights of Mr Nicklinson or is incompatible with the rights of Mr Lamb (para 119). (b) For the evidence does not enable the court to be satisfied either that there is a feasible and robust system whereby those in their position can be assisted to commit suicide or that the reasonable concerns of the Secretary of State, particularly to protect the weak and vulnerable, can be sufficiently met so as to render the absolute ban in the subsection disproportionate (para 120). (c) Even were the evidence such as to have enabled the court to make it, a declaration of incompatibility would at this stage have been inappropriate (para 115). (d) It would have been inappropriate because, even prior to the making of any declaration, Parliament should have the opportunity to consider whether, and if so how, to amend the subsection to permit assistance to commit suicide to be given to those in the position of Mr Nicklinson and Mr Lamb (para 116). (e) In particular because the Assisted Dying Bill is presently before it, it would be reasonable to expect Parliament in the near future to enlarge its consideration so as to encompass the impact of the subsection on those in their position (para 118). (f) Were Parliament not satisfactorily to address that issue, there is a real prospect that a further, and successful, application for a declaration of incompatibility might be made (para 118). (g) The risks to the weak and vulnerable might well be eliminated, or reduced to an acceptable level, were Parliament to provide that assistance might be given to those in their position only after a judge of the High Court had been satisfied that their wish to commit suicide was voluntary, clear, settled and informed (para 123). Lady Hale and Lord Kerr put forward a powerful case for making a declaration of incompatibility even at this stage. But two principal objections are levelled against it. The first objection is founded upon the sanctity (or, for those for whom that word has no meaning, the supreme value) of life which, for obvious reasons, is hard wired into the minds of every living person. It lies at the heart of the common law and of international human rights and it is also an ethical principle of the first magnitude. As Hoffmann LJ suggested in his classic judgment in the Court of Appeal in Airedale NHS Trust v Bland [1993] AC 789 at 826, a law will forfeit necessary support if it pays no attention to the ethical dimension of its decisions. In para 209 below Lord Sumption quotes Hoffmann LJs articulation of that principle but it is worth remembering that Hoffmann LJ then proceeded to identify two other ethical principles, namely those of individual autonomy and of respect for human dignity, which can run the other way. In the Pretty case, at para 65, the ECtHR was later to describe those principles as of the very essence of the ECHR. It was in the light (among other things) of the force of those two principles that in the Bland case the House of Lords ruled that it was lawful in certain circumstances for a doctor not to continue to provide life sustaining treatment to a person in a persistent vegetative state but relevantly to the practical resolution of the issue raised by the present appeals that prior authorisation of the non continuation of the treatment should, as a matter of good practice, be obtained in the Family Division of the High Court. In making the latter recommendation the House was reflecting its conclusion In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, at 56 and 79, reached in the light of a review of practice in the U.S. and Australia, that an operation of sterilisation should not be performed on an incapable adult without prior judicial authorisation. I agree with the observation of Lord Neuberger at para 94 that, in sanctioning a course leading to the death of a person about which he was unable to have a voice, the decision in the Bland case was arguably more extreme than any step which might be taken towards enabling a person of full capacity to exercise what must, at any rate now, in the light of the effect given to article 8 of the ECHR in the Haas case at para 51, cited at para 29 above, be regarded as a positive legal right to commit suicide. Lord Sumption suggests in para 212 213 below that it remains morally wrong and contrary to public policy for a person to commit suicide. Blackstone, in his Commentaries on the Laws of England, Book 4, Chapter 14, wrote that suicide was also a spiritual offence in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for. If expressed in modern religious terms, that view would still command substantial support and a moral argument against committing suicide could convincingly be cast in entirely non religious terms. Whether, however, it can be elevated into an overall conclusion about moral wrong and public policy is much more difficult. The second objection relates to the so called slippery slope. In respectful disagreement with Lord Kerr at para 354 below, I consider that, unless the court can be satisfied that any exception to the subsection can be operated in such a way as to generate an acceptably small risk that assistance will be afforded to those vulnerable to pressure to seek to commit suicide, it cannot conclude that the absolute prohibition in the subsection is disproportionate to its legitimate aim. In this respect the court may already be confident; but it cannot be satisfied. In an area in which the community would expect its unelected judiciary to tread with the utmost caution, it has to be said that, in appeals which the Court of Appeal understood to be presented to it on the basis that Mr Lamb could not commit, and that the late Mr Nicklinson could not have committed, suicide even with assistance, with the result that the issue which it addressed was their alleged right to euthanasia, the evidence and argument available to this court fall short of enabling it to be satisfied of what, like Lord Neuberger, I regard as a pre requisite of its making a declaration of incompatibility. Were Parliament for whatever reason, to fail satisfactorily to address the issue whether to amend the subsection to permit assistance to be given to persons in the situation of Mr Nicklinson and Mr Lamb, the issue of a fresh claim for a declaration is to be anticipated. It would no doubt be issued, as was that of Mr Nicklinson, in the Family Division of the High Court. The Crown would be entitled pursuant to section 5(1) of the 1998 Act to notice of the claim and I expect that the Attorney General would thereupon see fit to intervene pursuant to section 5(2). In that way the court would, I hope, receive the focussed evidence and submissions which this court has lacked. While the conclusion of the proceedings can in no way be prejudged, there is a real prospect of their success. Two features of a declaration are worth noting. The first is that it is indeed legitimate for a declaration to be made even though the provision only sometimes operates incompatibly with human rights. Thus in the Bellinger case, cited by Lord Neuberger at para 114 above, the former provision in section 11(c) of the Matrimonial Causes Act 1973, namely that a marriage shall be void if the parties are not respectively male and female, was declared incompatible even though it infringed the rights under article 8 only of those who had undergone gender reassignment and wished to marry persons of their own genetic sex. The concomitant is, however, that, in making a declaration, it behoves the court precisely to identify in the circumstances of the successful applicant the factors which precipitate the provisions infringement of his human rights. In addressing its task of fashioning a response to the declaration, Parliament deserves no less. The second, linked, feature of a declaration is that it affords to the courts of the U.K., no doubt uniquely, an opportunity to collaborate to some extent with Parliament in the amendment of the statutory provision which is discovered to have overridden human rights. I do not regard a degree of collaboration as objectionable or, in particular, as compromising judicial independence. But a court will be of maximum assistance to Parliament in this regard if it not only identifies the factors which precipitate the infringement but articulates options for its elimination. In this latter regard I wish expressly to indorse Lord Neubergers suggestion at para 123 that, in formulating an exception to the subsection, Parliament might adopt the procedure approved in the F and Bland cases and require that a High Court judge first be satisfied that a persons wish to commit suicide was (to use words which Parliament may feel able to improve) voluntary, clear, settled and informed. I am unaware of any situation in which the courts have acknowledged an inability to distinguish between the expression of an intention which genuinely reflects the speakers wish and one which does not do so. The ways in which the intentions have been expressed; the consistency or otherwise of its expression; the explanation proffered for it; and, of course, the quality of the speakers life; all these would inform the courts inquiry. A court might wish to hear evidence from the claimant himself, directly or indirectly; from members of his family; from his friends; from his medical practitioner and other professionals involved in his care; and no doubt also from a doctor and/or psychiatrist and/or other medical expert introduced into the case in order to report to the court. As a former judge of the Family Division, but with hesitation apt to the absence of submissions in this regard, I identify the following factors which the court might wish to investigate before deciding whether it can be so satisfied: (a) the claimants capacity to reach a voluntary, clear, settled and informed decision to commit suicide and the existence of any factor which, notwithstanding the requisite capacity, might disable him from reaching such a decision; (b) the nature of his illness, physical incapacity or other physical condition (the condition); (c) the aetiology of the condition; (d) its history and the nature of the treatments administered for it; (e) the nature and extent of the care and support with which the condition requires that he be provided; (f) the nature and extent of the pain, of the suffering both physical and psychological and of the disability, which the condition causes to him and the extent to which they can be alleviated; (g) his ability to continue to tolerate them and the reasonableness or otherwise of expecting him to continue to do so; (h) the prognosis for any change in the condition; (i) his expectation of life; (j) his reasons for wishing to commit suicide; (k) the length of time for which he has wished to do so and the consistency of his wish to do so; (l) the nature and extent of his discussions with others, and of the professional advice given to him, about his proposed suicide and all other options for his future; (m) the attitude, express or implied, to his proposed suicide on the part of anyone likely to benefit, whether financially or otherwise, from his death; (n) the proposed mechanism of suicide and his proposed role in achieving it; (o) the nature of the assistance proposed to be given to him in achieving it; (p) the identity of the person who proposes to give the assistance and the relationship of such person to him; (q) the motive of such person in proposing to give the assistance; and (r) any financial recompense or other benefit likely to be received by such person in return for, or in consequence of, the proposed assistance. Lord Neuberger comments at para 118 that it may be somewhat premature for me to identify the above factors. But, in that a majority of the court expects that even now, prior to the making of any declaration, Parliament will at least consider reform of the law, I put forward the factors with a view only to enabling Parliament to appreciate the scrupulous nature of any factual inquiry which it might see fit to entrust to the judges of the Division. On balance I concur in upholding the appeal of the Director of Public Prosecutions in the proceedings brought by Martin and in dismissing his cross appeal. By issue of the current policy, the director has done all that the House of Lords required in the Purdy case, cited at para 39 above. There is certainly a case for concluding that she might reasonably do more to clarify, in one way or another, the size of the risk that she would consent to the prosecution of health care professionals who, out of a sense of professional concern, perhaps even of perceived obligation and in any event of sympathy, propose to relieve their patients of profound and permanent suffering by assisting them to commit suicide. But big questions are raised, particularly in the judgment of Lord Hughes below, whether the fact that she might reasonably do more can properly be translated by the principle of legality in article 8 into a legal obligation. A more satisfactory outcome for the health care professionals than more detailed exposition of the directors policy would be a courts conclusion that their proposed assistance falls within a statutory exception to the prohibition in the subsection. By the judgments of five members of this court in the other appeals, the prospect of some such exception has come at least somewhat closer and, were it to materialise, it would represent a resolution to the unenviable difficulties currently confronting them which would be sounder in law as well as more satisfactory to themselves. LORD SUMPTION Introduction: assisted suicide English judges tend to avoid addressing the moral foundations of law. It is not their function to lay down principles of morality, and the attempt leads to large generalisations which are commonly thought to be unhelpful. In some cases, however, it is unavoidable. This is one of them. Suicide is not a novel issue. The moral and legal objections to it have been debated for centuries. There is a case for saying that the only proper concern of the law is to ensure that a person who commits suicide or tries to do so is in a position to make an informed and rational choice. It is the same case today as it was two millennia ago when Seneca described suicide as the last defence of a free man against intolerable suffering: It makes a great deal of difference whether a man is lengthening his life or only his death. If the body is useless for service, then why should he not free the struggling soul? Perhaps he should even do it a little before he needs to, lest when the time comes he may be unable to perform the act. Since the danger of living in wretchedness is so much greater than the danger of dying soon, he is a fool who refuses to sacrifice a little time to win so much. Few men have lasted through extreme old age to death without impairment, and many have lain inert and useless. How much more cruel, then, do you suppose it really is to have lost a portion of your life, than to have lost your right to end it?: Ep. LVIII. This is the classic statement of the principle of autonomy. But it expresses only one side of a complex moral dilemma. There are some moral values, of which the state is the proper guardian, with no rational or utilitarian justification, but which are nevertheless accepted because they are fundamental to our humanity and to our respect for our own kind. The principle of autonomy is one of these values. Its basis is the moral instinct, which is broadly accepted by English law subject to well defined exceptions, that individuals are entitled to be the masters of their own fate. Others are bound to respect their autonomy because it is an essential part of their dignity as human beings. There is, however, another fundamental moral value, namely the sanctity of life. A reverence for human life for its own sake is probably the most fundamental of all human social values. It is common to all civilised societies, all developed legal systems and all internationally recognised statements of human rights. I cannot put the point better than Hoffmann LJ did in the Court of Appeal in Airedale NHS Trust v Bland [1993] AC 789, 826C E: we have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable. Leaving aside purely regulatory offences, the criminal law necessarily responds to moral imperatives which command general acceptance among the population at large. The problem in this case is that on the issue of suicide, our most fundamental moral instincts conflict. Our belief in the sanctity of life is not consistent with our belief in the dignity and autonomy of the individual in a case where the individual, being of sound mind and full capacity, has taken a rational decision to kill himself. These are ancient dilemmas. Ours is not the first generation to confront them. But they are more acute and controversial today, for two main reasons, which are related. One is that advances of medical science have made it possible to preserve life well beyond the point where it is worth living. The other is that it is more difficult in modern conditions for intensely personal end of life choices to be made informally, within the family and with the support of a trusted medical practitioner. The medical profession, for wholly understandable reasons, is less willing in a transparent, highly regulated and litigious world to take the responsibility for cutting life short or helping someone else to do so, without an assurance of immunity which in the present state of the law is impossible to give. The answer which English law gives to these questions is entirely clear. Suicide was a common law offence in England until 1961. It was treated as a form of murder. A particular feature of the law of murder, which makes it unusual among offences against the person, is that the consent of the victim is not a defence to a charge of deliberate killing. Suicide, or self murder, was therefore an offence notwithstanding its voluntary character. It followed that an unsuccessful attempt at suicide was criminal, and so was the act of an accessory. The Suicide Act 1961 abolished the rule of law which made suicide an offence, but preserved the criminal liability of accessories. As amended by the Coroners and Justice Act 2009, section 2(1) created a statutory offence committed by any person who does an act which is (a) capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) intended to encourage or assist suicide or an attempt at suicide. The reason for decriminalising suicide was not that suicide had become morally acceptable. It was that imposing criminal sanctions was inhumane and ineffective. It was inhumane because the old law could be enforced only against those who had tried to kill themselves but failed. The idea of taking these desperate and unhappy individuals from their hospital beds and punishing them for the attempt was as morally repugnant as the act of suicide itself. It was ineffective because assuming that they truly intended to die, criminal sanctions were incapable by definition of deterring them. For these reasons, attempted suicide had probably never been an offence in Scotland and by 1961 had long ceased to be one in most European countries. Even in England, prosecution had become rare by the time that the offence was abolished. These points are discussed in Glanville Williams, The Sanctity of Life and the Criminal Law (1958), 248 249. However, the continuing legal objection to suicide was reflected in the fact that very many countries in which suicide was lawful nevertheless imposed criminal liability on those who advised or assisted it. Research summarised in the judgment of the European Court of Human Rights in Koch v Germany (2013) 56 EHRR 6 at para 26 suggests that of the 42 members states of the Council of Europe for which information was available, 36 imposed criminal liability on any form of assistance to suicide and another two, while not imposing criminal liability on direct assistance in suicide, prohibited the prescribing of drugs in order to facilitate it. In Haas v Switzerland (2011) 53 EHRR 33, at para 55 the Court concluded that the vast majority of member states seem to attach more weight to the protection of the individuals life than to his or her right to terminate it. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, Lord Bingham said at para 35 that, while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Lord Hope, in the same vein, observed at para 106 that the Act did not create a right to commit suicide. It followed, as both of them pointed out, from the continuing prohibition of advice and assistance under section 2 of the Act. By this they were plainly not seeking to suggest that suicide remained a legal wrong. The point was that it belonged to the familiar category of acts lawful in themselves but contrary to public policy. This is a categorisation which primarily affects the legal responsibilities of third parties. In particular, it has consequences for the criminal liability of secondary parties or for the enforceability of associated contractual and other legal obligations. The different legal treatment of the person who wishes to commit suicide and the person who is willing to assist him is not arbitrary. It responds to the same moral instincts which give rise to most dilemmas in this field. Recommendation 1418 (1999) of the Council of Europe recorded at paragraph 9c the Councils view that a terminally ill or dying persons wish to die never constitutes any legal claim to die at the hand of another person, and that a terminally ill or dying persons wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death. This is because, as Lord Hobhouse observed in his speech in Pretty at para 111, the intervention of another party puts the conduct into a different category from conduct which has involved the deceased alone. I think that Hoffmann LJ came close to the heart of the matter in Airedale NHS Trust, when he pointed out (at page 831) that this was, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. Why should this be so? There are at least three reasons why the moral position of the suicide (whom I will call the patient from this point on, although the term may not always be apt) is different from that of a third party who helps him to kill himself. In the first place, the moral quality of their decisions is different. A desire to die can only result from an overpowering negative impulse arising from perceived incapacity, failure or pain. This is an extreme state which is unlikely to be shared by the third party who assists. Even if the assister is moved by pure compassion, he inevitably has a greater degree of detachment. This must in particular be true of professionals such as doctors, from whom a high degree of professional objectivity is expected, even in situations of great emotional difficulty. Secondly, whatever right a person may have to put an end to his own life depends on the principle of autonomy, which leaves the disposal of his life to him. The right of a third party to assist cannot depend on that principle. It is essentially based on the mitigating effect of his compassionate motive. Yet not everyone seeking to end his life is equally deserving of compassion. The choice made by a person to kill himself is morally the same whether he does it because he is old or terminally ill, or because he is young and healthy but fed up with life. In both cases his desire to commit suicide may be equally justified by his autonomy. But the choice made by a third party who intervenes to help him is very different. The element of compassion is much stronger in the former category than in the latter. Third, the involvement of a third party raises the problem of the effect on other vulnerable people, which the unaided suicide does not. If it is lawful for a third party to encourage or assist the suicide of a person who has chosen death with a clear head, free of external pressures, the potential arises for him to encourage or assist others who are in a less good position to decide. Again, this is a more significant factor in the case of professionals, such as doctors or carers, who encounter these dilemmas regularly, than it is in the case of, say, family members confronting them for what will probably be the only time in their lives. The Nicklinson and Lamb appeal: Is section 2 of the Suicide Act in principle compatible with the Human Rights Convention? The sole directly relevant authority is Pretty v United Kingdom (2002) 35 EHRR 1. Mrs Pretty suffered from motor neurone disease. She wanted to be able to count on the assistance of her husband to commit suicide when her suffering became intolerable to her and she was no longer capable of reaching the Dignitas clinic in Switzerland unaided. The European Court of Human Rights held that section 2 of the Suicide Act, by interfering with Mrs Prettys right to end her life, engaged article 8.1 of the Convention. In its subsequent decision in Haas v Switzerland (2011) 53 EHRR 33, at paras 50 51, the Court held that the effect of this decision was that an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. Article 8.1 was engaged because respect for Mrs. Prettys private life entailed accepting her autonomy in making her own end of life choices. This is not exactly a right to commit suicide. It is an immunity from interference by the state with the settled decision of a person of full legal and mental capacity to kill himself, unless the interference can be justified under article 8.2. That being so, the question arose whether the prohibition of all acts of assistance by section 2 of the Suicide Act was justifiable under article 8.2. In that context, the question could not be addressed simply on the footing that her autonomy entitled her to choose death. She needed the assistance of a third party whose own position had to be considered. Of the three considerations that I have summarised above (paragraph 215), it was the third which the Court regarded as decisive. It was held that section 2 of the Suicide Act was justifiable by considerations of public health and in particular by the implications for vulnerable people. The relevant considerations were summarised as follows at para 74: [T]he Court finds. that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals. The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. After a brief discussion of the question whether this analysis would create a dangerous precedent, the Court concluded, at para 76: The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. In my opinion the passages which I have quoted express the ratio of this decision. The question whether to impose a blanket ban on assisted suicide lay within the margin of appreciation of the United Kingdom. This was because it was for each state to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were relaxed or if exceptions were to be created. Section 2 was capable of being justified because although it applied to many people who were not in need of protection, it was open to the United Kingdom to take the view that it had to apply generally in order to serve the needs of those who were. It is clear from the way in which the Court treated the separate complaint of a contravention of article 14 that it considered that the United Kingdom had taken that view and been entitled to do so. At para 89, the Court wrote: Even if the principle derived from the Thlimmenos case is applied to the applicants situation, however, there is, in the Courts view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable. Similar cogent reasons exist under article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. The same conclusion had been reached for substantially the same reasons by the Supreme Court of Canada, dealing with a very similar issue in Rodriguez v Attorney General of Canada [1993] 3 SCR 519, which the Strasbourg Court regarded as persuasive in Pretty: see para 74. Section 7 of the Canadian Charter of Rights and Freedoms provided that every person had the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Court held that the Canadian prohibition of assisted suicide did not violate the Charter. Writing for the majority, Sopinka J held that section 7 was engaged but that it was justified because of the difficulty of protecting the life of others without a blanket ban: Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it cannot be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society. I am thus unable to find that any principle of fundamental justice is violated by section 241(b). (p 608) As I have sought to demonstrate in my discussion of s.7, this protection is grounded on a substantial consensus among western countries, medical organizations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the slippery slope. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuses of the exception. (p 613) The relevance of prosecutorial discretion In Pretty, the European Court of Human Rights considered at para 76 the discretionary elements of English criminal proceedings which in practice mitigated the blanket character of the ban on assisted suicide: 76 . The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in 22 cases in which mercy killing was an issue, there was only one conviction for murder, with a sentence for life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences. It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. 77 Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicants husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable. 78 The Court concludes that the interference in this case may be justified as necessary in a democratic society for the protection of the rights of others and, accordingly, that there has been no violation of article 8 of the Convention. I do not read these observations as making the conformity of section 2 with article 8 dependent on the existence of a prosecutorial discretion or the way that it is exercised. The conformity of section 2 with article 8 depended, as I have pointed out, on whether the states assessment of the risk and likely incidence of abuse was such as to justify a blanket ban. This is the sole factor identified at paras 74 and 89 of the Courts judgment. The existence and limits of the prosecutorial discretion are put forward at para 76 (i) as matters which a member state may properly take into account in deciding whether a blanket ban on assisted suicide is proportionate, and (ii) as a reason for rejecting Mrs. Prettys complaint that the Director of Public Prosecutions had refused to give her an advance undertaking not to prosecute her husband if he helped her to kill herself. Applying the margin of appreciation It follows that it is for the United Kingdom to decide whether in the light of its own values and conditions section 2 of the Suicide Act is justifiable under article 8.2 of the Convention in the interest of the protection of health. That gives rise to two issues of principle. One is the nature of the decision, and in particular the extent to which the evidence requires the conformity of section 2 with article 8 to be reassessed. The other is whether in a case with the particular features of this one such a reassessment is a proper constitutional function of the Courts as opposed to Parliament. The role of evidence The evidence before us of the risk of abuse if the rule against assisted suicide were to be relaxed or qualified consists substantially of material from two sources: the report of Lord Falconers Commission on Assisted Dying, and the decision of Lynn Smith J in the Supreme Court of British Columbia on a very similar issue in Carter v Canada [2012] BCSC 886. We were invited to conclude on the basis of this material that the views of Parliament in 1961 and of the Strasbourg Court at the time of Pretty had now been overtaken by the more recent knowledge. Lord Mance has reviewed this material and summarised the problems associated with it in terms with which I agree. There are obvious difficulties about reaching a concluded view on untested, incomplete and second hand material of this kind. The authority of these sources is also diminished by other considerations. The Commissions report, although measured and, as far as one can tell, objective, was inspired by a campaign to change the law. Committed opponents of assisted suicide declined to give evidence before it. Lynn Smith Js review of the extensive evidence before her excluded a substantial body of apparently relevant material as inadmissible and was ultimately set aside by the Court of Appeal on the ground that it was inconsistent with the law laid down by the Supreme Court of Canada in Rodriguez. However, I would in any event reject the submission that the issue has been overtaken by more recent knowledge because I think that this material even if taken at face value is inconclusive both factually and legally. It is inconclusive factually, for reasons which emerge very clearly from the report of the Commission on Assisted Dying. The only jurisdictions with experience of legalised assisted suicide are certain states of the United States, of which the most important is Oregon, and the Netherlands, Belgium and Switzerland. The data from these sources is contested and acknowledged to be of variable robustness. It is also sensitive to underlying conditions such as standards of education, the existence of long term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom. Indeed, there may well be significant regional and sociological variations within the United Kingdom. It is plain from the expert evidence reviewed by the Commission that there is a diversity of opinion about the degree of risk involved in relaxing or qualifying the ban on assisted suicide, but not about its existence. The risk exists and no one appears to regard it as insignificant. There is a reputable body of experienced opinion which regards it as high. It includes the British Geriatrics Society, the British Association of Social Work and Action against Elder Abuse. It may fairly be said that their evidence was not empirical but judgmental and anecdotal. But that may be thought to reflect the nature of the issue, which makes it unrealistic to expect decisive empirical evidence either way. The concept of abuse embraces at least two distinct problems. One is that the boundary between assisted suicide and euthanasia is so porous that in practice it may be crossed too often, sometimes even in cases where there was no true consent. The other is the risk that that if assisted suicide were lawful, some people would be too ready to bring an end to their lives under real or perceived pressure from others. I can deal shortly with the first kind of abuse. It is true that the boundary between assisted suicide and euthanasia is porous. The point is illustrated by the existence of machines for committing suicide, such as Dr Nitschkes, which involve an elaborate process of production and preparation in which everything is done by the assister apart from the final activation of the equipment which he has set up. There seems to me to be no moral and very little functional distinction between suicide by this method and a lethal injection administered by a third party. Nonetheless, I am sceptical of arguments based on this fact, because they assume that assisters, and in particular medical practitioners, would not understand or respect the boundary between voluntary and involuntary choices or between euthanasia and assistance. The papers for this appeal disclose no evidence to support that assumption and a certain amount of evidence to contradict it. I do not doubt that both assisted suicide and euthanasia occur, but they occur in spite of the present state of the law, and would occur in spite of any safeguards that might be included in some alternative state of the law. The vulnerability to pressure of the old or terminally ill is a more formidable problem. The problem is not that people may decide to kill themselves who are not fully competent mentally. I am prepared to accept that mental competence is capable of objective assessment by health professionals. The real difficulty is that even the mentally competent may have reasons for deciding to kill themselves which reflect either overt pressure upon them by others or their own assumptions about what others may think or expect. The difficulty is particularly acute in the case of what the Commission on Assisted Dying called indirect social pressure. This refers to the problems arising from the low self esteem of many old or severely ill and dependent people, combined with the spontaneous and negative perceptions of patients about the views of those around them. The great majority of people contemplating suicide for health related reasons, are likely to be acutely conscious that their disabilities make them dependent on others. These disabilities may arise from illness or injury, or indeed (a much larger category) from the advancing infirmity of old age. People in this position are vulnerable. They are often afraid that their lives have become a burden to those around them. The fear may be the result of overt pressure, but may equally arise from a spontaneous tendency to place a low value on their own lives and assume that others do so too. Their feelings of uselessness are likely to be accentuated in those who were once highly active and engaged with those around them, for whom the contrast between now and then must be particularly painful. These assumptions may be mistaken but are none the less powerful for that. The legalisation of assisted suicide would be followed by its progressive normalisation, at any rate among the very old or very ill. In a world where suicide was regarded as just another optional end of life choice, the pressures which I have described are likely to become more powerful. It is one thing to assess some ones mental ability to form a judgment, but another to discover their true reasons for the decision which they have made and to assess the quality of those reasons. I very much doubt whether it is possible in the generality of cases to distinguish between those who have spontaneously formed the desire to kill themselves and those who have done so in response to real or imagined pressure arising from the impact of their disabilities on other people. There is a good deal of evidence that this problem exists, that it is significant, and that it is aggravated by negative modern attitudes to old age and sickness related disability. Those who are vulnerable in this sense are not always easy to identify (there seems to be a consensus that the factors that make them vulnerable are variable and personal, and not susceptible to simple categorisation). It may be, as Lord Neuberger suggests, that these problems can be to some extent be alleviated by applying to cases in which patients wish to be assisted in killing themselves a procedure for obtaining the sanction of a court, such as is currently available for the withdrawal of treatment from patients in a persistent vegetative state. But as he acknowledges, there has been no investigation of that possibility in these proceedings. It seems equally possible that a proper investigation of this possibility would show that the intervention of a court would simply interpose an expensive and time consuming forensic procedure without addressing the fundamental difficulty, namely that the wishes expressed by a patient in the course of legal proceedings may be as much influenced by covert social pressures as the same wishes expressed to health professionals or family members. These are significant issues affecting many people who are not as intelligent, articulate or determined as Diane Pretty or Tony Nicklinson. They disclose in turn a more fundamental problem. There is a variety of reasons why the resolution of some issue may lie within the margin of appreciation of the state. It may be because the Strasbourg court has recognised that a legitimate diversity of cultural values among member states of the Council of Europe makes a range of possible answers equally consistent with the Convention. Such issues as the prohibition of abortion in Ireland (A v Ireland (2011) 53 EHRR 13) and the presence of crucifixes in Italian classrooms (Lautsi v Italy (2012) 54 EHRR 3) are cases in point. In cases like these, if the Strasbourg court has held the rule or practice of the particular state to be within the states margin of appreciation, then absent a fundamental shift of cultural values either within the state in question or among the members states of the Council of Europe generally, there is usually little if any scope for a national court in that state to say that the rule or practice in question is contrary to the Convention. Strasbourg has said that it is not. Different considerations arise if the reason why the rule or practice is within a states margin of appreciation is that the proportionality of some measure or its rational connection with some legitimate objective in itself is sensitive to national conditions which are more effectively assessed by national institutions. The latter exercise calls for an evaluation by national authorities of local needs and conditions: see Buckley v United Kingdom (1996) 23 EHRR 101 at para 75. But these are not rigid or mutually exclusive categories, and one of the problems about the present issue is that it shares some features of both. The question whether the protection of the health of the vulnerable requires a general prohibition on assistance for suicide cannot be a pure question of fact susceptible to decision on evidence alone. Like many issues in the area of human rights, it turns at least partly on a judgment about the relative importance of the different and competing interests at stake. There is no complete solution to the problem of protecting vulnerable people against an over ready resort to suicide. I doubt whether even a procedure for obtaining judicial sanction would be a complete solution, although with more information than we have at present it might prove to be a partial one. The real question about all of these possibilities is how much risk to the vulnerable we are prepared to accept in this area in order to facilitate suicide by the invulnerable. This is a particularly difficult balance to draw in a case where the competing interests are both protected by the Convention. For this reason, there is an important element of social policy and moral value judgment involved. The relative importance of the right to commit suicide and the right of the vulnerable to be protected from overt or covert pressure to kill themselves is inevitably sensitive to a states most fundamental collective moral and social values. Parliament or the Courts? The Human Rights Convention represents an obligation of the United Kingdom. In a matter which lies within the margin of appreciation of the United Kingdom, the Convention is not concerned with the constitutional distribution of the relevant decision making powers. The United Kingdom may make choices within the margin of appreciation allowed to it by the Convention through whichever is its appropriate constitutional organ. That will depend on its own principles of constitutional law. In In Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, the House of Lords accepted that where questions of social policy were within the United Kingdoms margin of appreciation and admitted of more than one rational choice, that choice would ordinarily be a matter for Parliament, but considered that even in the most delicate areas of social policy, this would not always be so. They held that the rule in question, namely the ineligibility of unmarried couples to adopt children, was irrational and unjustifiably discriminatory because it erected a reasonable generalisation (that children were better brought up by married couples) into a universal rule of eligibility preventing unmarried couples from even being considered. It therefore contravened articles 8 and 14 of the Convention: see paras 16 20 (Lord Hoffmann), 53 (Lord Hope), 129 130, 143 144 (Lord Mance). Doubtless, where there is only one rational choice the Courts must make it, but the converse is not true. Where there is more than one rational choice the question may or may not be for Parliament, depending on the nature of the issue. Is it essentially legislative in nature? Does it by its nature require a democratic mandate? The question whether relaxing or qualifying the current absolute prohibition on assisted suicide would involve unacceptable risks to vulnerable people is in my view a classic example of the kind of issue which should be decided by Parliament. There are, I think, three main reasons. The first is that, as I have suggested, the issue involves a choice between two fundamental but mutually inconsistent moral values, upon which there is at present no consensus in our society. Such choices are inherently legislative in nature. The decision cannot fail to be strongly influenced by the decision makers personal opinions about the moral case for assisted suicide. This is entirely appropriate if the decision makers are those who represent the community at large. It is not appropriate for professional judges. The imposition of their personal opinions on matters of this kind would lack all constitutional legitimacy. Secondly, Parliament has made the relevant choice. It passed the Suicide Act in 1961, and as recently as 2009 amended section 2 without altering the principle. In recent years there have been a number of bills to decriminalise assistance to suicide, at least in part, but none has been passed into law. Lord Joffe introduced two bills on the House of Lords in 2004 and 2005. The 2005 bill went to a second reading in May 2006, but failed at that stage. Lord Falconer moved an amendment to the Coroners and Justice Bill 2009 to permit assistance to a person wishing to travel to a country where assisted suicide is legal. The amendment also failed. The Assisted Dying Bill, sponsored by Lord Falconer, is currently before the House of Lords. In addition to these specific legislative proposals, the issue of assisted suicide has been the subject of high profile public debate for many years and has been considered on at least three occasions since 2000 by House of Lords Select Committees. Sometimes, Parliamentary inaction amounts to a decision not to act. But this is not even an issue on which Parliament has been inactive. So far, there has simply not been enough Parliamentary support for a change in the law. The reasons why this is so are irrelevant. That is the current position of the representative body in our constitution. As Lord Bingham observed in R (Countryside Alliance) v Attorney General [2008] AC 719 at para 45, [t]he democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament. Cf. Axa v The Lord Advocate [2012] 1 AC 868 at para 49 (Lord Hope). Third, the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic polycentric problem. But, perhaps critically in a case like this where firm factual conclusions are elusive, Parliament can legitimately act on an instinctive judgment about what the facts are likely to be in a case where the evidence is inconclusive or slight: see R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394, esp. at para 239 (Lord Neuberger), and Bank Mellat v H.M. Treasury (no. 2) [2013] 3 WLR 179, 222 at paras 93 94 (Lord Reed). Indeed, it can do so in a case where the truth is inherently unknowable, as Lord Bingham thought it was in R (Countryside Alliance) v Attorney General at para 42. In the course of argument, it was suggested that the case for the Respondents in the Nicklinson appeal required the Appellants to suffer a painful and degrading death for the sake of others. This is a forensic point, but up to a point it is a legitimate one. It is fair to confront any judge, or indeed legislator, with the moral consequences of his decision. The problem about this submission, however, is that there are many moral consequences of this decision, not all of them pointing in the same direction. For my part, I would accept a less tendentious formulation. In my view, if we were to hold that the pain and degradation likely to be suffered by Mr Lamb and actually suffered by Mr Nicklinson made section 2 of the Suicide Act incompatible with the Convention, then we would have to accept the real possibility that that might give insufficient protection to the generality of vulnerable people approaching the end of their lives. I conclude that those propositions should be rejected, and the question left to the legislature. In my opinion, the legislature could rationally conclude that a blanket ban on assisted suicide was necessary in Convention terms, i.e. that it responded to a pressing social need. I express no final view of my own. I merely say that the social and moral dimensions of the issue, its inherent difficulty, and the fact that there is much to be said on both sides make Parliament the proper organ for deciding it. If it were possible to say that Parliament had abdicated the task of addressing the question at all, so that none of the constitutional organs of the state had determined where the United Kingdom stood on the question, other considerations might at least arguably arise. As matters stand, I think it clear that Parliament has determined that for the time being the law should remain as it is. For this reason I would not wish to encourage the notion that if the case for Mr Nicklinson and Mr Lamb had been differently presented and procedures for scrutinising cases in which patients expressed a desire for assistance in killing themselves had been examined on this appeal, the decision of this court might have been different. In my opinion, the issue is an inherently legislative issue for Parliament, as the representative body in our constitution, to decide. The question what procedures might be available for mitigating the indirect consequences of legalising assisted suicide, what risks such procedures would entail, and whether those risks are acceptable, are not matters which under our constitution a court should decide. I have not dealt with the possibility that the present state of the law might also be justifiable under article 8.2 for the protection of morals. That is because the point was hardly argued, and because the protection of health seems to me to be a sufficient justification. But I would certainly not rule it out. The criminal law is not a purely utilitarian construct. Offences against the person engage moral considerations which may at least arguably be a sufficient justification for a general statutory prohibition supported by criminal sanctions. The fact that the parties to these proceedings chose not to argue a point which might nevertheless legitimately influence Parliament illustrates one of the difficulties of deciding an issue of this kind judicially in the course of contested forensic litigation. The Martin appeal: are the Director of Public Prosecutions Guidelines to Prosecutors sufficiently clear? Although the acts covered by section 2(1) of the Suicide Act constitute an offence in all cases, an important element of discretion is introduced at two stages of the criminal process. The first is the discretion of the Director of Public prosecutions whether to prosecute or consent to a prosecution under section 2(4). The second is the discretion of a sentencing court upon conviction. These discretions are closely related. The Directors decision will be governed by the long standing practice, published in the Code for Crown Prosecutors and associated guidelines, which requires a prosecutor to be satisfied not only that the evidence is available to justify a conviction, but that it is in the public interest to prosecute. The public interest test depends on the presence of factors mitigating culpability, in other words on the same factors which would be taken into account by a sentencing court if there were a conviction. Indeed the link was once overt. In his classic statement of the policy in 1951, the then Attorney General Lord Shawcross observed that it is not always in the public interest to go through the whole process of the criminal law if, at the end of the day, perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed (Hansard (HC Debates) 483, col 683, 29 January 1951). I have already expressed the view that section 2 of the Act is compatible with the Convention regardless of the operation of the Directors discretion. There are, however, many circumstances in which the domestic law of a state is not required by the Convention to confer some right or discretion, but nevertheless if it does so, it will be held to the Conventions standards. A Convention state is not required to allow assisted suicide, and if it does, it may qualify it with conditions designed to prevent abuse: Haas v Switzerland (2011) 53 EHRR 33 at paras 57 58. In Gross v Switzerland, (2014) 58 EHRR 7, the European Court of Human Rights held that the ambit of the right and the scope of any restrictions upon it must, within the bounds of practicality, be clear. Therefore in Switzerland, one of the few countries to allow assisted suicide in principle, article 8 was infringed by the Swiss guidelines concerning the circumstances in which medical practitioners might prescribe lethal drugs. This was because they did not sufficiently clearly show how they applied to persons (such as Mrs. Gross) who were not terminally ill. To be justifiable under article 8.2 of the Convention, a measure engaging article 8.1 must be in accordance with the law. For this purpose, law has an extended definition embracing those respects in which the application of the law depends on practice. In R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, the House of Lords held that the Code for Crown Prosecutors and any associated guidelines fell within the broad category of law for the purpose of deciding whether section 2 of the Suicide Act was justifiable. It followed that the principle of legality required them to be sufficiently accessible and clear, which they were not. It is important to understand what the House regarded as sufficient level of precision and clarity, and why. The problem about law whose application depends on administrative discretion is that, unless the criteria for the exercise of that discretion are made clear in advance, it offers no protection against its inconsistent and arbitrary application. This is the basis of the Strasbourg Courts jurisprudence on the point. As the Court observed in Glmez v Turkey (Application no 16330/02) (unreported, 20 May 2008), at para 49, [d]omestic law must afford a measure of protection against arbitrary interference by public authorities with Convention rights, in respect of which the rule of law would not allow unfettered powers to be conferred on the Executive. Lord Hope, with whom Lord Phillips and Lord Neuberger agreed in terms and Baroness Hale and Lord Brown in substance, recognised this in Purdy: see paras 41, 46. He cited as the guiding principle the test stated by the European Court of Rights in Hasan and Chaush v Bulgaria (2003) (2000) 34 EHRR 1339 at para 84: In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. Lord Hope considered that protection against arbitrary exercises of discretion required that the Directors policy should be stated in advance with sufficient precision to make the consequences of a given course of action reasonably foreseeable. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary. Para 41 A high standard of clarity and precision is required of any law defining the elements of a criminal offence. We are not, however, concerned with the elements of criminal liability but with the likelihood that those who have incurred criminal liability will be prosecuted. That is not a matter of definition but of discretion. The degree of clarity and precision which it is reasonable to expect of a published policy about the exercise of the prosecutorial discretion is different in at least two important respects from that which can be expected of a statutory provision creating an offence. The first is that the pursuit of clarity and precision must be kept within the bounds of practicality. What is practically attainable, as the European Court of Human Rights recognised in the passage which Lord Hope quoted from Hasan and Chaush v Bulgaria, (quoted at para 238 above), must depend on the range of people and situations to which it is expected to apply. It is not practically possible for guidelines to prosecutors to give a high level of assurance to persons trying to regulate their conduct if the range of mitigating or aggravating factors, or of combinations of such factors, is too wide and the circumstances affecting the weight to be placed on them too varied for accurate prediction to be possible in advance of the facts. The second limitation is a point of principle. The pursuit of clarity and precision cannot be allowed to exceed the bounds of constitutional propriety and the rule of law itself. The Code and associated guidelines may be law in the expanded sense of the word which is relevant to article 8.2 of the Convention. But they are nevertheless an exercise of executive discretion which cannot be allowed to prevail over the law enacted by Parliament. There is a fine line between, on the one hand, explaining how the discretion is exercised by reference to factors that would tend for or against prosecution; and, on the other hand, writing a charter of exemptions to guide those who are contemplating breaking the law and wish to know how far they can count on impunity in doing so. The more comprehensive and precise the guidelines are, the more likely they are to move from the first thing to the second. As Lord Bingham observed in R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 at para 39, the Director has no power to give a proleptic grant of immunity from prosecution. This is not just a limitation on the statutory powers of a particular public official. It is a constitutional limitation arising from the nature of the function which he performs. The Bill of Rights declares that the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal. The European Court of Human Rights expressed the same notion in Pretty at para 77, when it pointed out that strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. Mrs Pretty had originally made an extreme claim. She wanted the Director to give her an assurance that her husband would not be prosecuted if he helped her to kill herself. But the point made by the Strasbourg Court would have applied equally, as they pointed out, to a case where the exemption was sought for classes of individuals, and this must be so whether those classes are defined by their acts or in any other way. Although both of these limitations emerge clearly from the Strasbourg case law cited by Lord Hope in support of his analysis in Purdy, neither of them was considered in detail in that case. This was because the published criteria which were held to be inadequate in Purdy were exceptionally vague. They consisted at that stage only in the Code which, because it had to cover the whole range of criminal offences, was necessarily couched in wholly general terms. No one was suggesting that the Director should do more than set out the most significant factors that would guide his decision: see the argument of Lord Pannick QC at page 350B/C. Lord Hope concluded from his examination of the principle that the Director should be required to to promulgate an offence specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdys case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act: para 56. Lord Brown of Eaton under Heywood considered at para 86 that what was needed was a custom built policy statement indicating the various factors for and against prosecution. In the event, the order of the House was made in the precise terms suggested by Lord Hope. Anything more than that would, as it seems to me, have been both impractical and contrary to constitutional principle, both problems of which the Committee was profoundly conscious. The Committee must have regarded the limited form of order which they made as satisfying the principle which they had declared. They must also have appreciated that guidance stating the principles on which the discretion was exercisable and indicating the factors for and against prosecution would not in all cases enable the individual to know in advance whether he would be prosecuted, but only what matters would be taken into account. The Directors published policy The Directors current policy is described in her predecessors Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, published in February 2010 after the decision in Purdy. Lord Neuberger has set out the relevant parts, and I will not do so again. In summary, it lists sixteen public interest factors tending in favour of prosecution and six public interest factors tending against prosecution. The factors tending in favour of prosecution include (6) that the suspect was not wholly motivated by compassion, (12) the suspect gave encouragement or assistance to more than one victim who were not known to each other, (13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance, (14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not],. and the victim was in his or her care, and (16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. Paragraph 44 recommends a common sense approach to the question of personal gain: It is possible that the suspect may gain some benefit financial or otherwise from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts. The factors in favour of and against prosecution are all subject to the general considerations at paragraphs 36 42. For present purposes, it is enough to quote paragraphs 39 and 40: 39 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. 40 The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the victim was not under 18 years of age does not transform the factor tending in favour of prosecution into a factor tending against prosecution. In formulating the published policy the Director did exactly what the order in Purdy required him to do. In the words of Lord Hopes statement of the principle at para 41, it set out the scope of the discretion and the manner of its exercise. The Director identified the factors that he would take into account, adding appropriate caveats about the importance of taking each case on its merits and considering the weight to be attached to each factor in the light of all the relevant circumstances. Moreover, the policy was carefully drafted so as avoid the risk of appearing to dispense from the operation of the law in certain cases, by identifying relevant factors rather than categories of persons or acts which would not, or probably not be prosecuted. Unless we are prepared to say that the House of Lords was wrong in Purdy to regard the order which it made as answering the principle which it declared, or unless circumstances have changed in some relevant respect, we should not now say that the February 2010 published policy is inadequate. No relevant change of circumstances has been alleged, and far from regarding the order made in Purdy as wrong, it seems to me to have been soundly based on principle. Martins case is that the current guidelines are inadequate because they do not make it sufficiently clear that an assister who has done nothing to encourage the suicide and whose assistance was motivated by nothing but compassion, will not be prosecuted. In particular, he says that they draw an unjustifiable distinction between assistance given by those who are connected to the patient by ties of love and affection (which he calls Class 1 cases), and others with no such connection (Class 2 cases). Martin accepts that the published policy is sufficiently clear about the former category. Unless there is particular cause for concern, all the factors tend against the prosecution of assisters in this category. They can assume, he says, that they will not be prosecuted. But he says that the position of those without emotional ties to the patient is unclear, especially if they are healthcare professionals or other professional carers. It is to their position that his submissions have been mainly directed. The Directors published policy has deliberately and rightly not been framed by reference to categories of suspect. But the factors listed do suggest a difference in treatment between those whose assistance is given in a professional capacity, whether as doctors, nurses or carers, and others who are connected by emotional bonds to the patient, in practice generally members of his family. In my view, Martin is wrong to suggest that those in the latter category can count on escaping prosecution. That will depend on all the relevant circumstances, of which the emotional bond may well be the most important but is unlikely to be conclusive. However, the published policy does show that assisters of this kind are less likely to be prosecuted than professionals or other outsiders, other things being equal, which they may not be. Thus, the professional character of an assisters involvement will itself tell in favour of prosecution (factor 14). In addition he, and others without emotional ties to the patient, may not be regarded as wholly motivated by compassion (factor 6) and are quite likely to be paid for their assistance (factor 13). Martin objects to these distinctions, as well as to the leeway left to prosecutors by the advice at paragraph 39 that the weight to be given to each factor should be assessed case by case instead of being subject to weightings set out in the published policy. This case was substantially accepted by the majority of the Court of Appeal. But in my view, it was wrong in principle for a number of reasons. In the first place, although presented as a complaint about the lack of clarity in the published policy, it is in reality a complaint about its substance. As I have pointed out, professionals and other outsiders differ in important respects from those whose willingness to assist the patient arises from an emotional relationship with him. The moral issues raised by the intervention of an outsider are more difficult to assess than those arising from assistance given by (say) members of the patients family. The answer is likely to be affected by an altogether wider range of factors and therefore to be correspondingly less clear in advance. One can illustrate this by reference to the significance of compassion, which everyone agrees is critical in most of these cases. In the case of a close family member, for example a parent, child or spouse, the compassionate character of his or her motivation will usually be obvious, even if the assister stood to benefit financially by the patients death. So far as anything is straightforward in this difficult field, it is the overwhelming emotional impact of the patients suffering on those closest to him. What constitutes a purely compassionate motive in the case of an outsider is likely to be much less obvious. At one extreme, the professional who assists the patient to kill himself may be a long term living in carer who has formed an emotional bond with the patient not unlike that of his closest relatives. At the opposite end of the range, the professional may have little or no personal acquaintance with the patient, but out of compassion for human suffering in general holds himself out as being ready to assist patients who have freely chosen suicide. Between these extremes there is an infinitely complex range of possibilities. The position of the professional is likely to be affected by his closeness to the patient, the length of his acquaintance with him, the extent of his previous responsibility for the patients care, his relations with the patients family, his opinions about the legal prohibition of assisted suicide, any relevant rules or guidance of his professional body, any involvement on his part in assisting other patients to commit suicide, whether he is paid for his assistance and if so how much, and many other matters. In addition to being more difficult to evaluate, the involvement of the professional raises issues with important implications for other terminally ill or suffering patients, many of whom may be vulnerable. The most that the Director can reasonably be expected to do in the face of such a complex process of evaluative judgment is to identify the main factors that will be relevant. It is neither possible nor proper for him to attempt a precise statement in advance of the facts about when a professional will or will not be prosecuted. Either such a statement will have to be so general and qualified as to be of limited value for predictive purposes, or else it is liable to tie the Directors hands in a way that would in practice amount to a dispensation from the law. In the Divisional Court Toulson LJ at paras 141 143 gave three reasons why it would be wrong to require the Director to reformulate her policy: 141. First, it would go beyond the Convention jurisprudence about the meaning of law in the context of the rule of law. Even when considering the meaning of law in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to law in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action. 142. Secondly, it would be impractical, if not impossible, for the DPP to lay down Guidelines which could satisfactorily embrace every person in Mr Havers class 2, so as to enable that person to be able to tell as a matter of probability whether he or she would be prosecuted in a particular case. As Mr Havers rightly observed, the factors for and against prosecution may point in opposite directions. I do not see how the DPP could be expected to lay down a scheme by which a person would be able to tell in advance in any given case whether a particular factor or combination of factors on one side would be outweighed by a particular factor or a combination of factors on the other side. The DPP is not like an examiner, giving or subtracting marks in order to decide whether a candidate has achieved a pass mark. The DPP has expressed his opposition to any such schematic approach for the good reason that each case ultimately involves a personal judgment. 143. Thirdly, it would require the DPP to cross a constitutional boundary which he should not cross. For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion. In my opinion, the Court of Appeal had no convincing answer to these points. This is, I think, because there is none. Ultimately, the question of legal principle posed by the reasoning of the House of Lords in Purdy is whether the uncertainty about the position of professionals allows the arbitrary and inconsistent exercise of executive discretion. In my opinion it does not. Any lack of clarity or precision does not arise from the terms of the Directors published policy. It arises from the discretionary character of the Directors decision, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case. All of these are proper and constitutionally necessary features of the system of prosecutorial discretion. The terms of the published policy reflect them. The document sets out the principal relevant factors for and against. It treats the professional character of an assisters involvement as a factor tending in favour of prosecution. It is at least as clear as any sentencing guidelines for this offence could be. The Lord Chief Justices interpretation of the Directors published policy I turn, finally, to a question which arose in the course of the argument, and which has assumed greater prominence than was perhaps expected when the appeal was opened. Lord Judge dissented in the Martin appeal, mainly because he took a different view of the interpretation of the published policy from the rest of the Court of Appeal. Paras 185 and 186 of his judgment have been set out, substantially in full, by Lord Neuberger at para 142 of his judgment. In summary, Lord Judge thought that factor 14 tending in favour of prosecution was concerned only with professionals who abused a position of trust arising from their professional relationship with the patient, for example by bringing undue influence to bear upon him. He thought that it did not extend to a professional carer who, with no earlier responsibility for the care of the victim, comes in from outside to help. He would have regarded it as an extraordinary anomaly that such a person should be more likely to be prosecuted than the family members who brought him in, at any rate if he was not profiteering. This, in Lord Judges view, was because such a person would be doing no more than (say) the patients wife would do if she could. He regarded it as an extraordinary anomaly, that those who are brought in to help from outside the family circle, but without the natural love and devotion which obtains within the family circle, are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the victim to achieve his desired suicide. Like Lord Neuberger, I do not think that this is what the Directors published policy says. On its face, it discloses a much more general principle that the professional character of an assisters involvement is in all circumstances a factor tending in favour of prosecution, although one whose weight will vary (like all the listed factors) according to the circumstances. Nonetheless, in the course of argument, Counsel for the Director accepted, on her specific instructions, that paras 185 and 186 of Lord Judges judgment correctly represented her policy. If this is so, and if, as I consider, the published policy as it stands says something different, then it is clear that the Director is bound to resolve the inconsistency one way or the other. However, I am not prepared to say that she must resolve it by incorporating Lord Judges interpretation into the published document. I am not prepared to do this for three reasons. First, it is unnecessary. I have no doubt that the Director will in any event wish to review the terms of the published policy in the light of the judgments on this appeal, especially on this point. Secondly, it is legally inappropriate. The Directors duty is to ensure (i) that her published policy is clear, and (ii) that it accurately represents her actual policy. It is not her duty to adopt Lord Judges interpretation as her policy, and in the absence of her concession in argument nobody could have suggested that it was. Third, it would not be appropriate to make an order the effect of which would be to hold her to that concession, until she has had the fullest opportunity of considering the implications of the two relevant paragraphs of Lord Judges judgment for the published policy as a whole, in the light of her legal and constitutional role as a prosecuting authority and in the light of our judgments in this case. The third point requires some expansion. The reason for making it is that Lord Judges two paragraphs cannot simply be incorporated into the existing published policy. They beg a number of questions, some of them fundamental, on which we do not know the Directors views, and on which she may not yet have formed concluded views. Lord Judge was interpreting factor (14) tending in favour of prosecution. But the relationship between a revised factor (14) and the other factors would need careful consideration if the resulting document is to be clear and coherent. The various listed factors for and against prosecution set out in the existing published policy are concerned with two main matters: (i) whether the assister was entitled to believe that the patient had made a free, settled and unpressured decision to die, and (ii) whether the assister was motivated wholly by compassion. The most difficult issue concerns the relationship between a revised factor (14) and the existing factor (6), which treats it as a factor tending in favour of prosecution that the suspect was not wholly motivated by compassion. The purely compassionate character of the assisters motivation is a major head of mitigation, which is more likely to be available to someone with an emotional connection to the patient than it is to an outsider with no emotional or even a prior professional connection. There may be very little mitigation available to, say, an assister acting under no compelling pressure arising from a prior relationship with the patient, who has simply been brought in to contribute his technical expertise to the commission of a criminal offence. It can fairly be said that in many cases this approach will deprive those closest to the patient of the means of enabling him to kill himself. This is so. But it is not the object of the published policy to facilitate assisted suicide. Its object is to enable prosecutors to address the main factors which mitigate guilt. Otherwise he is at risk of moving away from the concept of mitigating guilt, and towards that of dispensing certain categories of person from the operation of the Act. The relationship between a revised factor (14) and the existing factor (6) is probably the most delicate issue, but it is not the only one. What kind of professional carer with no earlier responsibility for the care of the victim will be covered by the revised policy? One may infer from the existing factor (12) tending in favour of prosecution that they will not generally include those who held themselves out as giving technical assistance for suicide or who, without holding themselves out, had done it before. Lord Judge appears to have made the (surely realistic) assumption that they would charge for their services, although not in a profiteering way. But how would such persons be affected by factor (13), which treats the receipt of payment as a factor tending in favour of prosecution. And what would constitute profiteering? Equally delicate questions may arise when one broaches the question what kind of assistance is to be covered by the revised policy. One may infer from factor (16) that the revised policy would not extend to the provision of suicide clinics in the United Kingdom to do what Dignitas does in Switzerland. But highly contentious issues may arise as to the application of the revised policy to some forms of assistance falling well short of that extreme. The context of Lord Judges remarks and the facts of Martins case suggest that he was thinking mainly of assistance consisting in accompanying the patient to Dignitas in Switzerland. But the same considerations would not necessarily apply to supplying lethal prescription drugs or specialised equipment. All of these questions might require consultation with the medical professions or even the general public, as occurred before the publication of the current policy. Unless the Director proposes to modify factors (6), (12) (14) and (16), the circumstances in which Lord Judges professional carer with no earlier responsibility for the care of the victim will be protected may be far too narrowly confined to justify Lord Judges prediction at para 186 that they are most unlikely to be prosecuted. But for present purposes the decisive consideration is that it is a matter for the Director and not for us to decide whether to adopt Lord Judges interpretation of the policy and if so how and how far to do so. The present state of the law The current position may fairly be summarised as follows: (1) In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life. (2) A person who is legally and mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes: Sidaway vs Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, 904 905; In re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1; Airedale NHS Trust v Bland [1993] AC 789. A patient (or prospective patient) may express his wishes on these points by an advance decision (or living will). (3) A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give and receive information is guaranteed by article 10 of the Convention. If the law were not as I have summarised it, I have difficulty in seeing how it could comply. (4) Medical treatment intended to palliate pain and discomfort is not unlawful only because it has the incidental consequence, however foreseeable, of shortening the patients life: Airedale NHS Trust v Bland [1993] AC 789, 867D (Lord Goff), 892 (Lord Mustill), R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, 831H 832A (Lord Steyn). (5) Whatever may be said about the clarity or lack of it in the Directors published policy, the fact is that prosecutions for encouraging or assisting suicide are rare. Between 1998 and 2011, a total of 215 British citizens appear to have committed suicide with medical assistance at the Dignitas clinic in Switzerland. Not one case has given rise to prosecution. Although cases of assisted suicide or euthanasia are periodically reported to the police (85, we were told, between 1 April 2009 and 1 October 2013) there has been only one recent prosecution for assisting suicide, and that was a particularly serious case. This state of English law and criminal practice does not of course resolve all of the problems arising from the pain and indignity of the death which was endured by Tony Nicklinson and is now faced by Mr Lamb and Martin. But it is worth reiterating these well established propositions, because it is clear that many medical professionals are frightened by the law and take an unduly narrow view of what can lawfully be done to relieve the suffering of the terminally ill under the law as it presently stands. Much needless suffering may be occurring as a result. It is right to add that there is a tendency for those who would like to see the existing law changed, to overstate its difficulties. This was particularly evident in the submissions of Dignity and Choice in Dying. It would be unfortunate if this were to narrow yet further the options open to those approaching death, by leading them to believe that the current law and practice is less humane and flexible than it really is. Conclusion I would dismiss the appeal of Mrs Nicklinson and Mr Lamb. I would allow the Directors appeal in Martins case, and dismiss Martins cross appeal. LORD HUGHES The claimants in these cases, and Mrs Nicklinson's husband before his death, together with some other people in similar positions, see themselves as in a cruel paradox. They have concluded that their lives are not worth living. Whether others in comparable positions would think the same of themselves is, for them, not the point. No one questions their mental capacity to reach the decisions that they have. It is impossible not to understand the depth of their dismay, given the combination of appalling limitation on even the most basic of functions and constant pain. If they were able, unassisted, to commit suicide, they have decided that they would. But their disabilities are so great that they cannot do so, unless they can persuade someone else to help them. Their physical conditions are not likely to be terminal in the near future, so that they will remain unable to achieve their wish for an indefinite period. Whatever the legal position, their appeal for relief will not fail to touch most hearers. A court can, however, only respond to this appeal by applying the law. That is, of course, not the same as deciding what individual judges would personally like the law to be. Under our constitutional arrangements, firmly entrenched even if largely unwritten, the legislative function is committed to Parliament and courts must not usurp it. Courts do have the necessary function to interpret statutes and to decide what they mean, and to synthesise the different sources of English law, statute law, common law and European. An essential question in this case is whether these latter, properly judicial, functions, can extend to afford the claimants the relief they seek. In this case there is a perfectly clear Act of Parliament. The Suicide Act 1961 abolished the offence of suicide, so that the suicide himself or herself is no longer committing an offence. But it deliberately, and plainly, created in section 2(1) a separate offence of assisting someone else to commit suicide. True it is that this was fifty years ago, but, even if the law knew a concept of statutory obsolescence, as it does not, this statute was deliberately re enacted in 2009, after lively public and Parliamentary debate, and after a private member's Bill designed to relax the law had been considered in Parliament and rejected. If anything, the new sections 2A and 2B inserted into the 1961 Act in 2009 somewhat extend the scope of the offence under section 2(1). There is no escape from the fact that unless section 2(1) of the Suicide Act is for some reason or to some extent ineffective, anyone who assists the present claimants or people in like position to commit suicide is guilty of an offence. The only possible route to qualifying the statute lies in the European Convention on Human Rights ("ECHR"), as part of English law via the Human Rights Act 1998. The argument that it does so in the present cases depends on deploying article 8 of the Convention, by one or other of two possible legal routes. Article 8 provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The scheme of article 8 is well known. Like several other articles dealing with so called qualified rights, it first states an area in which it is concerned to limit State action affecting individuals, and then, by paragraph (2) sets out the i) ii) qualifications which must be exhibited by State action if it is to be legitimate. Those qualifications are two, the first of legality and the second of justification: the State's action must be 'in accordance with the law'; and it must be justified as a proportionate means to a legitimate end. The reach of article 8 can now be seen to be extensive. "Private and family life" undoubtedly covers a wide range of personal activity. There are times when, as a sphere of personal activity is identified as falling within the reach of article 8, it is tempting to say that there is therefore a fundamental right to that particular form of activity. The better view is that the fundamental right is to what article 8.1 actually speaks of namely respect for private and family life. Whether there is a right to do the particular thing under consideration depends on whether the State is or is not justified in prohibiting it, or placing conditions upon it, and that in turn depends on whether the State's rules meet the requirements of article 8.2. To take a simple example unconnected with the present appeals, the consumption of drugs whether for reasons of health, pain relief, athletic performance or simple recreation may well be an aspect of private life within the reach of article 8.1. But it does not follow that there is a fundamental right to take cannabis or steroids, ecstasy or cocaine, still less for others to supply such drugs to would be users. The great majority of European States prohibit at least some drug usage in the general public interest, and such prohibition is generally more than fully justified under article 8.2. It is now clear that a person's autonomy in making decisions about how to end his life engages article 8. I agree that it follows that his autonomy in deciding to seek advice or assistance also does so. One ought not, however, in the present cases, to begin with the proposition that an individual has a right to make an end of life decision and to seek assistance in carrying it out. That would be to fall into the error explained in the last paragraph and to assume the answer to these cases. These cases depend not simply on article 8.1 but on its interrelation with article 8.2. And although the claimants in both appeals invoke article 8 they rely on quite different aspects of it. In the first appeal, of Mrs Nicklinson and Mr Lamb, the issue is now whether the claimant can lawfully engage the assistance of a medical practitioner such as Dr Nitschke to provide a complex machine to deliver a lethal injection, which the claimant can himself activate. Their wish is to undergo this process in England. Their case depends upon the justification limb of article 8.2. They can succeed only if the application of section 2(1) to them in their situations would fail the test of proportionate pursuit of legitimate aim. In effect, they can succeed only if in law the generalised ban upon assisted suicide in section 2(1) is contrary to their article 8 rights. In the second appeal, AM challenges not section 2(1) but the position of the Director of Public Prosecutions. He contends that the policy statement issued by the Director following the order to provide such which was made in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345 is not enough and must be amplified to deal more specifically with the position of a medical carer who assists, as distinct from a friend or relative who does. He has two distinct arguments. First and principally, he invokes article 8.2 not for the rule of proportionate justification but for the rule of legality. His contention is that a restriction on his private life must, to be in accordance with the law, make it sufficiently foreseeable whether a medical carer will be prosecuted. His secondary contention, advanced on his cross appeal, is that the Director's policy statement discourages the sort of professional compassionate assistance which he seeks, and that it is thus a disproportionate interference with his article 8 rights. This secondary position involves, like the appeal of Mrs Nicklinson and Mr Lamb, the invocation of the justification limb of article 8.2. This distinction is central to these appeals. So far as the first appeal is concerned, I have little to add to the reasoning of Lord Sumption, with which I respectfully agree. I also agree with the reasons given in the Court of Appeal, which on this point was unanimous. It is plain that the Strasbourg court has not found that a generalised prohibition on assisting others to commit suicide is a breach of article 8. Given the great preponderance of European States which adopt such a rule, and not least recommendation 1418 of the Council of Europe in 1999, it would have been extremely surprising if it had done so. It is true that Strasbourg thus regards the question as one to be resolved by individual States within their margin of appreciation. But in this country, with our constitutional division of responsibility between Parliament and the courts, this is very clearly a decision which falls to be made by Parliament. For the moment, the balance between the public interest in the protection of the vulnerable and the preservation of life on the one hand and the private interests of those minded to commit suicide on the other has been struck by the 1961 Act, re enacted in 2009. A change, whether desirable or not, must be for Parliament to make. That is especially so since a change would be likely to call for an infrastructure of safeguards which a court decision could not create. The position of the DPP Historically, England and Wales came late to a State public prosecutor considerably later than Scotland and much later than many European countries. The office of Director of Public Prosecutions was not created until 1879 and then in the face of no little opposition. Leaving aside bodies specially authorised to prosecute in particular areas, such as Local Authorities or Health and Safety Inspectors, for more than a century after this prosecutions remained essentially in the hands of the police, each local force of which was independent of any other. Those local police forces prosecuted either through the office of local solicitors instructed for the purpose, or, later, in some cases through solicitors established by the force for this specific purpose. Although the Director of Public Prosecutions had throughout that time the power to take over a prosecution if he judged it necessary, he had a very limited staff and was concerned only with a small number of the most serious cases. It was only with the Prosecution of Offences Act 1985 that a single body, the Crown Prosecution Service, came into existence with the duty, amongst others, of handling virtually all prosecutions initiated by the police, and the Director became its head. Whichever has been the body initiating prosecutions, the law of England and Wales has always recognised that a prosecution does not invariably follow acts which in law amount to a criminal offence. A well known statement of the position is that of the Attorney General, Sir Hartley Shawcross, in 1951, cited by Viscount Dilhorne in the House of Lords in Smedleys Ltd v Breed [1974] AC 839 at 856: "In 1951 the question was raised whether it was not a basic principle of the rule of law that the operation of the law is automatic where an offence is known or suspected. The then Attorney General, Sir Hartley Shawcross, said: 'It has never been the rule of this country I hope it never will be that criminal offences must automatically be the subject of prosecution.' He pointed out that the Attorney General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest to do so and he cited a statement made by Lord Simon in 1925 when he said: ' . there is no greater nonsense talked about the Attorney General's duty than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers call a case. It is not true and no one who has held the office of Attorney General supposes it is. Sir Hartley Shawcross's statement was indorsed, I think, by more than one of his successors." It may be relevant, especially when considering European pronouncements in this area, to note that this general position is not the same in a number of European criminal justice systems. Several of them have embedded either in constitution or criminal code the rule that the Public Prosecutor is under a prima face duty to prosecute when facts amounting to an offence are disclosed. Section 152(2) of the German Code of Criminal Code of Procedure is but one example and article 112 of the Italian constitution another. In Germany, such a domestic rule is regarded as an aspect of the principle of legality. There are broadly similar rules in Austria, Greece, Russia, Poland, Spain, Switzerland and Turkey. Whilst it is certainly true that there are increasingly provisions in many such countries permitting a decision that a prosecution in a particular case is not in the public interest, or authorising diversion to other methods of dealing with proscribed conduct (sometimes described as an aspect of the principle of expediency), this rule remains the default position. It is essential to identify the scope of the decisions thus being taken by prosecutors in England and Wales over the years. The prosecutor is expected to exercise independent judgment in scrutinising all the myriad facts of each particular case put before him. His power to decide, in the public interest, whether to proceed even where there is a prima facie case that the offence has been committed exists in every class of case, from the most trivial to the most serious. There is nothing in the least unusual in this respect about the offence under section 2(1) of the Suicide Act. The decision to be made is of the same kind as might be made, for example, in the case of a 13 year old caught shoplifting. It might well not be in the public interest to prosecute such a youngster, for example if it was apparent that he had been punished severely by either his parents or his school, or the object stolen had been a twopenny sweet. Conversely, it might be very much in the public interest if there had been longstanding widespread thieving by children in the area, there had been public warnings designed to deter which had failed, or the evidence showed that the child had recruited other younger boys to do the same. Similar decisions may have to be made in relation to offences such as causing death by careless driving. It might be judged not to be in the public interest to prosecute a mother whose careless but comparatively venial mistake at the wheel had resulted in the death of her own child where she was clearly going to bear the guilt for the rest of her life. The case against prosecution might be even stronger if the mother were herself seriously disabled in the same accident. Conversely, prosecution might well be in the public interest if she had been showing off at the wheel, had disregarded warnings to slow down, or she had had previous proven episodes of bad driving. What is common to all these decisions is that they are made ex post facto and are made individually for the single case under consideration, when all the facts have been investigated and are known. Of course some factors may recur, but in different combinations and of different intensities. Every case is different. Contrast the position when the Director of Public Prosecutions, or any other prosecutor, is asked to state in advance when a particular form of behaviour will result in prosecution and when it will not or may not. Then she is in immediate peril of crossing a constitutional Rubicon. She is in danger of doing one or both of two things. First she is likely to create an advance exemption from the law for a particular group of potential offenders. Second, she is likely in effect to modify the law as laid down in statute or at common law. She has no power to do either of these things. Both are a breach of her constitutional position. She is the head of a branch of the Executive, albeit one with the degree of independence of a non ministerial government department. As Lord Bingham pointed out in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 [2002] 1 AC 800 at paragraph 39, the power to dispense with and suspend laws and the execution of law without the consent of Parliament was denied to the Crown and its servants by the Bill of Rights 1689 (1 Will & Mary, sess 2, c 2). Section 2(4) of the Act, which requires the Director to consent to any prosecution brought under section 2(1) does not begin to alter this position, which is general to all offences, whether her consent is a requirement or not. Provisions requiring that prosecutions be brought only with the consent of the Director, or less frequently with that of the Attorney General or the Director of Her Majesty's Revenue and Customs, are relatively commonplace. The court was provided with a list of well over 130 statutes containing such stipulations. The number of offences affected is a great deal larger than 130 and they range from river pollution to insider dealing, and from lottery offences to corporate manslaughter. In evidence to the Franks Committee in 1972, the Home Office identified typical overlapping reasons for such provisions to be inserted into statutes: (a) to secure consistency in prosecutions, including where the offence may go wider than the mischief aimed at, (b) to prevent vexatious private prosecutions, (c) to enable account to be taken of mitigating factors, (d) to provide an element of central control in sensitive areas and (e) to enable account to be taken of national security or international considerations. There is no reason to think that section 2(4) was inserted into the Suicide Act with any intention of doing more than keeping the prosecutions in reliable hands. There is no reason at all to suppose that section 2(4) carries with it any greater or different function than the case specific ex post facto judgment described above. This is the "flexibility", inherent in the requirement for the Director to handle prosecutions for the section 2(1) offence, which the Strasbourg court was considering in Pretty v United Kingdom (2002) 35 EHRR 1. Similarly, the Government there also drew attention to the absence of any mandatory sentence for the offence, thus allowing lesser penalties to be imposed as appropriate. Both the process of abstaining from charging and the process of accepting mitigation in sentence are exercises in flexibility applied after the event to a person who has (or prima facie appears to have) in fact committed the offence, and both are decisions made for the individual case. Flexibility in sentencing was, for the Court, illustrated by the evidence, cited at paragraph 76, that over an eleven or twelve year period most so called 'mercy killing' cases (charged no doubt usually as manslaughter) had resulted in probation orders or suspended sentences. It was in this context that the Court addressed the article 8.2 rule of legality and went on immediately to say: "It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence." There is no occasion to read this observation, as Lord Brown read it in Purdy, as a decision that the generalised prohibition on assisting suicide was only saved from incompatibility with article 8 by the existence of the Director's powers in relation to prosecutions. The juxtaposition of those powers with discretionary sentencing is inconsistent with such a reading. Indeed, given the preponderance of generalised prohibitions on assisted suicide throughout Europe, and without any general prosecutorial discretion still less guidance as to how it might be exercised, it would have been extremely surprising if this had been what the Court was saying. The seductive argument presented on behalf of the claimant in Purdy contained a vital step which ignored the distinction here set out between examination after the event of all the facts of a case and advance exemption from the law of particular kinds of offending. The case for the claimant was opened in this way, at p 349: The discretion conferred on the Director of Public Prosecutions by section 2(4) is integral to the application of the criminal offence created by section 2(1). the flexibility introduced by the consent provisions of section 2(4) was recognised by the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 as an important factor relevant to establishing that the prohibition in section 2(1) was not a disproportionate interference with article 8: see at para 76. Section 2(4), therefore, constitutes parliamentary acknowledgment that there is a category of individuals who, notwithstanding they may have committed the offence under section 2(1), should nevertheless suffer no criminal penalty as a result and whom it is not in the public interest to prosecute. It is legitimate to say that Parliament no doubt recognised that there might be persons who commit the section 2(1) offence, whom it turns out not to be in the public interest to prosecute. That, however, is true of every offence in the criminal calendar. It is not legitimate to suppose that there is a category of such persons which can be identified in advance by the Director of Public Prosecutions. She cannot do so without crossing the constitutional boundary into either changing the law or giving advance exemption from it to a group of potential offenders. The basis of the case against the Director both in Purdy and in the present appeal of AM on the legality limb of article 8 is a suggested lack of sufficient foreseeability. The Strasbourg court has made clear that the level of precision which is required of domestic law to meet the principle of legality depends to a considerable degree on the content and that the overriding objective of the principle is to guard against arbitrary executive behaviour: see for example Gillan v United Kingdom [2010] ECHR 28; (2010) 50 EHRR 1105. But the foreseeability which any citizen is entitled to expect in relation to the decision of a prosecutor whether or not to institute proceedings is no more but no less than the knowledge that the prosecutor will examine all the facts of any case where an offence has been committed and will decide whether or not it is in the public interest to proceed. No doubt the citizen is entitled to expect more when the question is whether he has committed an offence or not, but in the case of the present appellants it is the settled assumption that they will have done so. The Court of Appeal in the present case appears to have accepted the argument that the legality rule of article 8.2 demanded that a person contemplating assisting someone else to commit suicide should know the answer to the question "What is the likelihood of a prosecution?" (see paragraph 140). But that question cannot be answered without crossing the constitutional boundary between judging each case on its merits according to the public interest and providing something close to an advance exemption in particular circumstances. The Strasbourg court has more than once made clear that the principle of legality does not extend to enabling potential offenders to avoid the application to them of a law which they may wish to avoid: see for example Weber and Saravia v Germany [2006] ECHR 1173; (2006) 46 EHRR SE 47 at paragraph 93. In the context of this law, it is the crossing of this constitutional boundary which could properly be described as arbitrary, not the preservation of an individualised ex post facto review of a case. In Purdy, the House of Lords likewise accepted the legality/foreseeability argument. Lord Hope confined himself to this reasoning, which is the way, so far as I can see, that the case for Mrs Purdy was advanced. Despite some observations which may suggest a view that section 2(1) might in some applications fail to be proportionate (Lady Hale at paras 63 64, Lord Brown at para 74), it is clear that the order made was based on acceptance of the legality/flexibility case (Lady Hale at para 64, first sentence, Lord Brown at para 85, Lord Neuberger at para 106). Even if, contrary to my respectful view, the order in Purdy was justified, the argument for AM in the present appeal cannot properly be described as anything other than an attempt to obtain for a particular category of persons an advance indication that they will not be prosecuted even though they will have committed the offence. Mr Havers QC rests his case on the contention that the existing policy issued by the Director satisfactorily indicates what may happen to relatives who, out of compassion, assist a patient to commit suicide ("class 1") but does not provide the same indication to professional carers who do so ("class 2"). It is to be noted that this is not really a claim to greater clarity, which might favour either more or fewer prosecutions; rather, it is a claim to a policy of non prosecution for class 2. The Court of Appeal accepted this argument, finding at paragraph 140 that the existing policy "does not provide medical doctors and other professionals with the kind of steer in class 2 cases that it provides to relatives and close friends acting out of compassion in class 1 cases." But the legitimate functions of the Director of Public Prosecutions do not extend to giving to a particular group of those who, however understandably, are contemplating committing a criminal offence, an advance "steer" as to whether they are likely to be prosecuted, still less an indication that they will not be prosecuted although they have committed the offence. There are several further difficulties. First, the legitimate prosecutor's function of deciding whether a particular case does or does not warrant proceedings requires a close examination of all its facts. Certainly amongst the relevant facts will be the character and motivation of the potential defendant. But even more important, in most cases, will be to ask what exactly the potential defendant has done. In the context of the section 2(1) offence, an essential factor is the kind of assistance given and what if any degree of encouragement it involved. The argument in Purdy appears to have proceeded on the assumption of only one kind of assistance, namely arranging a journey to a country where assisted suicide is lawful and within it to a respectable clinic where such assistance is provided. But as the facts of the other appeals in the present case show, this is only one of many ways in which the offence under section 2(1) might be committed. What of assistance to travel to Switzerland but in order there to adopt some different method of suicide away from the Dignitas clinic? What of the doctor who prescribes a lethal dose of barbiturates? What of the doctor who does more, and prepares a syringe for his patient to use, or for a relative to use? And what of someone such as Dr Nitschke who assembles for such as Mr Lamb a complicated piece of machinery but himself stops a millimetre or two short of giving the injection. Mr Lamb, no doubt like others, does not wish to travel abroad. He hopes for a dispensation to allow a doctor to assist him in this country. Does the location make any difference? If it does not, would someone who set up a Dignitas like clinic in an English city be entitled to the same advance steer or not ? Although the argument in Purdy may have centred entirely on a proposed journey to Switzerland, the order made against the Director did not. It required him: to promulgate policy identifying facts and circumstances which he will take into account in deciding whether to consent to prosecution under section 2(1) of the Suicide Act 1961 When, loyal to that order, the Director set about formulating more detailed policy, which involved a major exercise in public consultation, it will be observed that he eschewed altogether the otherwise central element of the kind of assistance. He was right to do so. It is quite apparent, and appears to be common ground in the present appeal, that to require his successor to give an advance indication of her policy in relation to differing forms of assistance would cross the line into requiring her to re define the offence, and that that is illegitimate. But simply to pose these questions demonstrates the illegitimacy of the order against her which is sought in the present case. The order made by the Court of Appeal was wholly open ended, namely a declaration: "that theDirector of Public Prosecutions (DPP) is in breach of section 6(1) of the Human Rights Act 1998, read with article 8.2 of the European Convention on Human Rights, in that he has made insufficiently foreseeable the consequences, in terms of the exercise of his prosecutorial discretion under section 2(4) of the Suicide Act 1961, of the encouragement or assistance of a suicide or attempted suicide." Even if this order could be narrowed to limit it to medical or other professional carers, the problem identified above remains, whilst if it were to be thus narrowed it would be shown even more clearly to be directed to advance exemption of particular groups of offenders. The second difficulty is demonstrated by the first. If it be the law that the Director must provide more specific policy guidance to offer a "steer" to Mr Havers' class 2 professional carers, it is not easy to see why she should not also be required to provide a similar steer to other groups of potential defendants, for example those whose proposed assistance would take one of the possible forms set out in para 281. If for one such group, then it ought to follow for each of the others, and no doubt for many more. Thirdly, although it can be said that the section 2(1) offence has particular characteristics, it is difficult to see any proper basis, if the Director is required to indicate in advance factors going to prosecution in this case, why the same should not be true of all other criminal offences, in relation to which her function is the same. In fact, the special nature of this offence can be overstated. It is not unique for the law to make it an offence to assist others to do what is not itself a crime, as is demonstrated for example by the offence of living on the earnings of prostitution: prostitution itself, in the absence of public soliciting, is not an offence but living on the earnings of prostitution is, whether or not it involves any element of exploitation. Those who are the 'victims' of crime may in circumstances other than assisting suicide be instigators of it, for example in some cases of forbidden sexual relationships. There may be a number of cases where the victim's article 8 interests are potentially engaged (subject to justification) unless the crime is committed, the recreational user of dangerous drugs who wants a supplier to sell to him may well be an example. It is obvious that there may well be many reluctant offenders in many crimes. But even if it can properly be said that this offence combines features which are not together found elsewhere, it is the fact that the Director controls all but a marginal set of police prosecutions see section 3(2) of the Prosecution of Offences Act 1985. If it be the law that she can be required to provide a statement of policy as to factors identifying who is likely to be prosecuted in this case, it is difficult to see why the same law does not apply to other offences. Once such a requirement is made, the criminal law is in danger of being diverted from the proper trial process into anticipatory applications for judicial review of the policy, made on hypothetical or uncertain facts by those who seek either to reduce the likelihood of prosecution or to increase it. Such a process subverts the criminal law and encourages satellite litigation. Like Lord Sumption, I am unable to see that there is any answer to the three reasons given in the Divisional Court by Toulson LJ (paras 141 to 143) why it would be wrong to require the Director to reformulate her policy. For these reasons, which supplement those of Lord Sumption with which I largely agree, AM cannot properly call for a yet further policy statement from the Director on grounds of legality/foreseeability. For my part, I do not think it is appropriate, for the reasons set out above, for any court to embark upon close construction of the terms of the Director's existing published policy, although if one is to consider it I do not dissent from the analysis set out by Lord Sumption at paragraph 253. I should also record my respectful agreement with those basic propositions of law set out in Lord Sumption's judgment at 255 subparagraphs (1) (4). Nor can AM obtain the order which he seeks against the Director on his alternative ground, relying on the justification limb of article 8.2 and on proportionality. This is a repetition of the proportionality argument in the first appeal. If section 2(1) is not disproportionate unless and until Parliament says that it is, then for the same reason the Director cannot be required to "modify" her policy, for that would be to use the Director to change the law. If on the other hand section 2(1) were to be adjudged contrary to article 8 because disproportionate, then the correct remedy would be a declaration of incompatibility; it would still be impermissible, for all the reasons set out above and as explained by Lord Kerr, for the court to use the Director's powers in an individual case to achieve wholesale changes in the law. I would for these reasons dismiss the appeals of Mrs Nicklinson and Mr Lamb, and the cross appeal of AM, but allow the appeal of the Director of Public Prosecutions. LORD CLARKE I agree that, in the first appeal, the appeals of Mrs Nicklinson and Mr Lamb should be dismissed and, in the second appeal, that the DPPs appeal should be allowed and Martins cross appeal should be dismissed. I agree that the appeals and cross appeal should be so disposed of for the reasons given by Lord Sumption, Lord Reed and Lord Hughes. I add a few words of my own on the differing views, not as to the disposal of the appeals, but as to what may happen in the future. Lord Neuberger, Lord Mance and Lord Wilson conclude that the appeal and cross appeal should be disposed of in the same way but contemplate the possibility that circumstances may arise in the future in which an application for a declaration of incompatibility might succeed. In his para 197 Lord Wilson has summarised what he calls Lord Neubergers crucial conclusions in the first appeal. I agree that those are indeed his crucial conclusions. I also agree with the conclusions at para 197(a) to (e). Among the critical factors appear to me to be the fact that the detailed proposals made by Lord Neuberger and Lord Wilson were not advanced in argument and thus have not been subjected to the kind of detailed scrutiny that these difficult questions deserve. A further critical factor is that to date Parliament has not considered the position of those in a similar position to that of Mr Nicklinson and Mr Lamb. I agree with Lord Wilson that Lord Neuberger also included the points in his para 197(f) and (g). However, he went further, in order to explain what he meant by saying in para 118 (referred to in Lord Wilsons para 197(f)) what might happen if the issue was not satisfactorily addressed. Lord Neuberger said that, for various reasons, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of the Applicants explicitly debated in the near future. Importantly, he added this: Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration. In that connection, Lord Wilsons list of factors in para 205 [above], while of real interest, might fairly be said to be somewhat premature. Subject to what follows, I agree with Lord Neuberger. If Parliament chooses not to debate these issues, I would expect the court to intervene. If, on the other hand, it does debate them and, after mature consideration, concludes that there should be no change in the law as it stands, as at present advised and save perhaps in exceptional circumstances, I would hold that no declaration of incompatibility should be made. In this regard I agree with the views expressed by Lord Mance at para 190, after referring earlier to the opinion of Rendquist CJ in Washington v Glucksberg 521 US 702 (1997) at p 735, that Parliament is certainly the preferable forum in which any decision should be made, after full investigation and consideration, in a manner which will command popular acceptance. In these circumstances I would conclude that the courts should leave the matter to Parliament to decide. I recognise that it may well be that, for the reasons given by Lord Neuberger and Lord Wilson, Parliament will conclude that some such process as they suggest might be appropriate but, as I see it, that is a matter for it (and not the courts) to determine. In particular, judges should not express their own personal views on the moral questions which arise in deciding what is the best way forward as a matter of policy. As Lord Sumption says in para 228, the imposition of the personal opinions of professional judges in matters of this kind would lack all constitutional legitimacy. LORD REED I agree with the majority of the court that, in the first appeal, the appeals of Mrs Nicklinson and Mr Lamb should be dismissed and, in the second appeal, that the DPPs appeal should be allowed and Martins cross appeal should be dismissed. In relation to these matters I am generally in agreement with the reasoning of Lord Clarke, Lord Sumption and Lord Hughes, so far as consistent with the following observations of my own. There is also a great deal in the judgment of Lord Mance with which I respectfully agree, including in particular his discussion of proportionality. I add a few words of my own in order to clarify one mattter. I entirely accept that, as Lady Hale puts it, even if the Strasbourg court would regard the issue before us as within the margin of appreciation which it accords to member states, it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law. If the question whether a provision of primary legislation is compatible with a Convention right arises before one of the courts listed in section 4(5) of the Human Rights Act 1998, the court evidently has jurisdiction to determine it. In that respect, amongst others, the Human Rights Act introduces a new element into our constitutional law, and entails some adjustment of the respective constitutional roles of the courts, the executive and the legislature. It does not however eliminate the differences between them: differences, for example, in relation to their composition, their expertise, their procedures, their accountability and their legitimacy. Accordingly, it does not alter the fact that certain issues are by their nature more suitable for determination by Government or Parliament than by the courts. In so far as issues of that character are relevant to an assessment of the compatibility of executive action or legislation with Convention rights, that is something which the courts can and do properly take into account. They do so by giving weight to the determination of those issues by the primary decision maker. There is nothing new about this point. It has often been articulated in the past by referring to a discretionary area of judgment. The question whether section 2 of the Suicide Act 1961 is incompatible with the Convention turns on whether the interference with article 8 rights is justified on the grounds which have been discussed. That issue raises highly controversial questions of social policy and, in the view of many, moral and religious questions on which there is no consensus. The nature of the issue therefore requires Parliament to be allowed a wide margin of judgment: the considered assessment of an issue of that nature, by an institution which is representative of the citizens of this country and democratically accountable to them, should normally be respected. That is not to say that the courts lack jurisdiction to determine the question: on the contrary, as I have explained. But it means that the courts should attach very considerable weight to Parliaments assessment. In the present case, I am far from persuaded that that assessment is unjustifiable under the Convention. That is not to say that it is inconceivable that the position could alter in the future: changes in social attitudes, or the evolution of the Convention jurisprudence, could bear on the application of the Convention in this context, as they have done in other contexts in the past. But that is not the position at present. LADY HALE There is so much in the comprehensive judgment of Lord Neuberger with which I entirely agree. He has shown that, even if the Strasbourg court would regard the issue before us as within the margin of appreciation which it accords to member states, it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law: Re G (Adoption: Unmarried Couple) [2009] 1 AC 173. Hence both he and Lord Wilson accept that, in the right case and at the right time, it would be open to this court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. Understandably, however, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration. Lord Mance is also prepared to contemplate that possibility, although he too thinks Parliament the preferable forum in which any decision should be made (paras 190 191)). Together with Lord Kerr and I, who would make a declaration now, this constitutes a majority who consider that the court both can and should do this in an appropriate case. Lord Clarke (para 293) and Lord Sumption (para 233) might intervene but only if Parliament chooses not to debate the issue; otherwise, they, and Lord Reed and Lord Hughes, consider that this is a matter for Parliament alone. Like everyone else, I consider that Parliament is much the preferable forum in which the issue should be decided. Indeed, under our constitutional arrangements, it is the only forum in which a solution can be found which will render our law compatible with the Convention rights. None of us consider that section 2 can be read and given effect, under section 3(1) of the Human Rights Act 1998, in such a way as to remove any incompatibility with the rights of those who seek the assistance of others in order to commit suicide. However, in common with Lord Kerr, I have reached the firm conclusion that our law is not compatible with the Convention rights. Having reached that conclusion, I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Parliament is then free to cure that incompatibility, either by a remedial order under section 10 of the Act or (more probably in a case of this importance and sensitivity) by Act of Parliament, or to do nothing. It may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative. Why then is the present law incompatible? Not because it contains a general prohibition on assisting or encouraging suicide, but because it fails to admit of any exceptions. The problem with the present law is vividly illustrated by comparing the situation of people like Mr Nicklinson, Mr Lamb and Martin with that of Ms B: see Re B (Consent to Treatment: Capacity) [2002] EWHC 429 (Fam), [2002] 1 FLR 1090. Ms B was a professional woman in her forties, who became paralysed from the neck down as a result of a cervical cavernoma. She could move her head and use some of her neck muscles but could not move her torso, arms and legs at all. She was totally dependent upon her carers in the intensive care unit where she had been for a year. Her life was supported by artificial ventilation. Without it she would have a less than 1% chance of independent ventilation. And death would almost certainly follow. She wanted the ventilator turned off but her doctors refused to do so. She brought proceedings in the Family Division of the High Court seeking declarations that she had the mental capacity to choose whether or not to accept the treatment and that the hospital was treating her unlawfully, together with nominal damages to recognise the tort of trespass to her person. Dame Elizabeth Butler Sloss P granted her the remedies she sought. The principal question was whether she had capacity to consent to or refuse life sustaining treatment. If she had that capacity it was for her to make that decision for herself and not for her doctors to make it for her. It was irrelevant whether they or anyone else thought that continued treatment would be in her best interests. It is important to note that Ms B was entitled to refuse treatment without having to go to court. The hospital should have acceded to her wishes. The only valid reason for not doing so would be a reasonable doubt about whether she had the capacity to give or refuse her consent to life sustaining treatment. Had she lacked that capacity, the question would indeed have been governed by what was in her best interests. As she did have capacity, she was entitled to take whatever decision she wanted: it was for her to decide where her own best interests lay. The reason that she had to go to court was that her request for the machine to be turned off was seen by some of the people looking after her as killing her or assisting her to die and thus ethically unacceptable (para 97). But our law draws two crucial distinctions. The most important is between the positive and the negative, between killing and letting die, between taking active steps to end a patients life, even though this is what the patient herself earnestly desires, and withholding or withdrawing life sustaining medical treatment or intervention to which a patient refuses her consent (whether at the time or in advance). While this distinction may make sense to us, it must often make little sense, especially to those who suffer the cruel fate of paralysis: those who can breathe without artificial help are denied a choice which those who cannot do so may make, should they wish to do so. For some of the people looking after them, it will be a mystery why they must switch off the machine or withdraw artificial nutrition and hydration if this is what the patient wants, but they may not painlessly administer a lethal dose of medication which the patient wants just as much. The second distinction is between killing and helping someone to kill herself, between murder (or voluntary manslaughter) and assisting suicide. Both are crimes, but the latter is less serious than the former. The distinction between them is less clear cut than the distinction between killing and letting die, but it is nevertheless important. Mercy killing is the choice and the act of the person who kills, however benevolent the motive. Committing suicide is the choice and the act of the person who does it, and that person commits no crime. Hence, as Lord Neuberger explains, assisting suicide is a very unusual offence. In Pretty v United Kingdom (2002) 35 EHRR 1, disagreeing with the majority of the House of Lords in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800, the Strasbourg court held that the right to respect for private life protected by article 8.1 of the European Convention on Human Rights was engaged by the prohibition of assisting suicide contained in section 2(1) of the Suicide Act 1961 (most clearly stated in para 86, referring back to paras 61 to 67). The court agreed with Lord Hope that the way she chooses to pass the closing moments of her life is part of the act of living, and she has the right to ask that this too must be respected (para 64). Since then, the Strasbourg court has been even clearer about what the right entails, in Haas v Switzerland (2011) 53 EHRR 33, at para 51 (repeated in Koch v Germany (2013) 56 EHRR 6, para 52, and Gross v Switzerland (2014) 58 EHRR 7, para 59): . an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. I agree with Lord Kerr that the court was not saying that the right to choose the manner and timing of ones death depends upon being physically capable of carrying out that choice without any assistance. Of course, it does not follow from a persons right to respect for her autonomous choices about how and when she wishes to die that she also has the right to demand to be provided with help from other people. It does not follow from the right to marry and found a family in article 12 of the Convention that a person has a right to be provided with a marriage partner. But it does follow from that right that the states right to place obstacles in the way of a person who does wish to become a marriage partner is severely limited. In Pretty, Haas, Koch and Gross, the Strasbourg court might have drawn a clear distinction between taking ones own life and having the help of another to do so. The court might have said that, while interfering with a persons right to take her own life would require justification under article 8.2, interfering with that persons freedom to receive the willing help of another in doing so did not require justification. But the court said no such thing. It went on in each case to consider the justifications advanced for interfering with the help which others might wish to give. And in the Gross case, it held that the interference was not justified. The House of Lords must have taken the same view in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345, when it unanimously accepted that the prohibition of assisting suicide in section 2(1) of the Suicide Act 1961 was an interference with the article 8.1 rights of the would be suicide. Had it not been such an interference, there would have been no need to look for justification under article 8.2, and the requirement that the interference be in accordance with the law would not have arisen. This Court has not been invited to hold that Purdy was wrongly decided and I for one would not be prepared to do so. It must also follow that no distinction can be drawn between those who could do it all for themselves, but merely prefer to have some help, and those who cannot do it all for themselves. I agree entirely with Lord Kerr (at para 332 of his judgment) that that cannot have been what the Strasbourg Court meant by the reference to being capable of . acting in consequence of their freely reached decision. The action could include authorising others to act as well as taking action oneself. The question, therefore, remains as it has always been. Is an outright prohibition of such help a proportionate interference with the right of the individual to choose the manner and timing of her death? As is well known, to be justified, such interference has to be (i) for a legitimate aim which is important enough to justify interfering with a fundamental right, (ii) rationally connected to achieving that aim, (iii) no more than reasonably necessary to achieve it, and (iv) in the light of this, striking a fair balance between the rights of the individual and the interests of the community (see R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621, para 45; Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, 222, para 20). The only legitimate aim which has been advanced for this interference is the protection of vulnerable people, those who feel that their lives are worthless or that they are a burden to others and therefore that they ought to end their own lives even though they do not really want to. In terms of article 8.2, this could be put either as the protection of health or as the protection of the rights of others, the right in question being the most important right of all, the right to life protected by article 2. As Lord Sumption points out, an alternative aim might be advanced, as the protection of morals. Respect for the intrinsic value of all human life is probably the most important principle in Judaeo Christian morality. It would surely justify an absolute refusal to oblige any person to help another commit suicide. It would not so obviously justify prohibiting those who freely judged that, in the circumstances of a particular case, there was no moral impediment to their assisting suicide. Respect for individual autonomy and human dignity are also important moral principles. The very complexity of the moral argument, amply demonstrated in the material before this court, tells against relying upon this as the legitimate aim of the legislation. Is it then reasonably necessary to prohibit helping everyone who might want to end their own lives in order to protect those whom we regard as vulnerable to undue pressures to do so? I can understand the argument that it is: how does a person judge which pressures are undue and which are not? We can all understand why people placed in the situation of Mr Nicklinson, Mr Lamb, Martin or Ms B might wish an end to their suffering. But (as I ventured to point out in Purdy, at para 66) there are many other reasons why a person might consider it a sensible and reasonable thing to do. On what basis is it possible to distinguish some of those pressures from others? That problem is certainly enough to justify a general ban on assisting suicide. But it is difficult to accept that it is sufficient to justify a universal ban, a ban which forces people like Mr Nicklinson, Mr Lamb and Martin to stay alive, not for the sake of protecting themselves, but for the sake of protecting other people. In Pretty, the Strasbourg court rejected the argument that Mrs Pretty was suffering inhuman and degrading treatment contrary to article 3. But no one who has read the appellants accounts of their lives and their feelings can doubt that they experience the laws insistence that they stay alive for the sake of others as a form of cruelty. It would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives. There would be four essential requirements. They would firstly have to have the capacity to make the decision for themselves. They would secondly have to have reached the decision freely without undue influence from any quarter. They would thirdly have had to reach it with full knowledge of their situation, the options available to them, and the consequences of their decision: that is not the same, as Dame Elizabeth pointed out in Re B (Treatment), as having first hand experience of those options. And they would fourthly have to be unable, because of physical incapacity or frailty, to put that decision into effect without some help from others. I do not pretend that such cases would always be easy to decide, but the nature of the judgments involved would be no more difficult than those regularly required in the Court of Protection or the Family Division when cases such as Aintree University Hospitals NHS Trust v James [2013] 3 WLR 1299 or Re B (Treatment) come before them. I mention those courts as the decision makers, because they are accustomed to dealing with such sensitive life and death questions, some of them (as Lord Neuberger points out) even more dramatic than this. But other bodies, sufficiently neutral and independent of anyone involved with the applicant, and skilled at assessing evidence and competing arguments, could be envisaged. The task would differ from that of the Court of Protection when making decisions on behalf of people who lack capacity, in that there would be no discretion or assessment of the applicants best interests involved. The whole purpose of the procedure is to respect the autonomous choice of a person who has the capacity to make it. In that respect the task would be very similar to that of Dame Elizabeth Butler Sloss in Re B (Treatment). Were there to be such a procedure, it would appear to me to be more than sufficient to protect those vulnerable people whom the present universal prohibition is designed to protect. They simply would not meet the qualifications to be allowed help. The process would not be invoked and even if it were it would not succeed in securing them that help. It would be a more suitably targeted solution than any prosecution policy, however enlightened and humane, could ever be. It would have the merit of resolving the issue in advance rather than relying on ex post facto executive discretion to solve the problem (although it should not preclude the exercise of prosecutorial discretion in a case where prior authorisation had not been obtained). To the extent that the current universal prohibition prevents those who would qualify under such a procedure from securing the help they need, I consider that it is a disproportionate interference with their right to choose the time and manner of their deaths. It goes much further than is necessary to fulfil its stated aim of protecting the vulnerable. It fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance and the interests of the community as a whole. I understand that Lord Neuberger and Lord Wilson are receptive to that view in principle, but consider that this is not the right occasion or the right time to make a declaration of incompatibility. That is an entirely understandable view, given in particular the original focus of the cases of Mr Nicklinson and Mr Lamb on voluntary euthanasia rather than assisted suicide (as explained in full by Lord Mance). The sort of process which I have suggested above was scarcely touched upon, let alone explored, in evidence or argument. However, the question for us is one of principle rather than fact: once the principle is established, the question for the judge or other tribunal which is asked to authorise the assistance would be one of fact. He or she would have to be satisfied on the evidence that the applicant had freely reached a fully informed decision which she had the capacity to reach and needed the defined help which was available to enable her to put that decision into effect. It is at that point that the evidence relating, for example, to Dr Nitschkes machine, would become relevant and important. I also understand that Lord Mance would not rule out such a solution, but he considers that we lack the evidence, in particular about the risks to people who need the protection of this law, to justify departing from the view taken by the House of Lords in Pretty. It is worth remembering that the House took the view that article 8 was not engaged at all, and so the observations made about the justification for any interference were strictly obiter dicta. Furthermore, the assertions made about the need to protect vulnerable people were just that: they were no more based on solid evidence than were the assertions to the contrary made, for example, in Carter v Canada [2012] BCSC 886. Indeed, the experience of those few jurisdictions where assisted suicide is permitted provides some means of testing the case for a universal ban. In my view, the question is one of principle rather than evidence, and in principle it is the interference which requires justification rather than the limited exception which is suggested. The Carter case will be coming before the Supreme Court of Canada, probably later this year, and it will be interesting to see how they approach the issue. Left to myself, therefore, I would have allowed the first appeal and made a declaration that section 2(1) of the Suicide Act 1961 is incompatible with article 8, to the extent that it does not provide for any exception for people who have made a capacitous, free and fully informed decision to commit suicide but require help to do so. It seems to me that as a general rule, the prohibition is justified. It is the lack of any exception to meet the particular circumstances of the sorts of case before us that is incompatible. I agree with Lord Wilson (para 203) that it is legitimate to make a declaration even though a provision only sometimes operates incompatibly with the convention rights (as in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467). I am, however, a little bit nervous about his list of factors (para 205), because factors are more readily associated with the exercise of a discretion, rather than an issue of fact, which I believe this to be, and some of them are a little suggestive of a best interests jurisdiction. But they are helpful in illustrating some of the factual matters which a decision maker might wish to explore in addressing the four essential requirements which I have outlined at para 314 above. Turning to the second appeal, the Director of Public Prosecutions is required by the order made in Purdy to clarify what facts and circumstances she will take into account in deciding whether a prosecution is in the public interest. I entirely agree with Lord Neuberger that she should reconsider her policy in the light of the difference of opinion as to its meaning which emerges from the judgments in the Court of Appeal. We were told on her behalf that the Lord Judge CJs interpretation of her policy was correct. If so, that should be made clear in the policy. People should be able to go to that policy, and not to the judgments in this court, in order to understand it. Left to myself, I would go further. It seems to me, as it seemed in Purdy, that the policy has two purposes. The first, and uncontroversial, purpose is to make the way in which decisions to prosecute will be taken sufficiently clear to meet the Convention requirement that the interference be in accordance with the law. This entails accessibility (hence the need to clarify the policy) and foreseeability, as well as consistency and lack of arbitrariness. We can debate endlessly what the Strasbourg court meant, at para 76 of Pretty (quoted by Lord Neuberger at para 32 above) by first stating that the Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate and going on to discuss the flexibility of enforcement in the next sentence. It might have been reverting to the non arbitrary requirement of legality. Or it might have been continuing its discussion of proportionality. I ventured to suggest in Purdy (paras 63 and 64) that the policy may have a part to play in securing that section 2(1) does not operate as a disproportionate interference with the right protected by article 8 and now so clearly articulated in Haas v Swizerland. The underlying theme of the factors which the DPP considers relevant to whether a prosecution will be in the public interest is clearly to identify the sort of cases which might be covered by the exception proposed above. The time may therefore be ripe for a review to see whether further progress can be made in that direction without offending against the constitutional prohibition of dispensing with the laws. But I agree that there is no need to make an order requiring the DPP to conduct a review. She will no doubt be considering the position in the light of the judgments in this Court and in the Court of Appeal. Hence, I would have allowed the appeal of Mrs Nicklinson and Mr Lamb and made the declaration of incompatibility outlined above. I am content to allow the Directors appeal and to dismiss the cross appeal in the case of Martin. I also wish to record my agreement with the important statements in para 255(2), (3), and (4) of Lord Sumptions judgment. I have, however, reservations about both the statements in paragraph 255(1), which may require some qualification or elaboration, especially in the light of Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] 1 AC 681, and Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72. A policeman is surely entitled to prevent a would be suicide from jumping off Westminster Bridge. I should perhaps add that my conclusion is not a question of imposing the personal opinions of professional judges. As already explained, we have no jurisdiction to impose anything: that is a matter for Parliament alone. We do have jurisdiction, and in some circumstances an obligation, to form a professional opinion, as judges, as to the content of the Convention rights and the compatibility of the present law with them. Our personal opinions, as human beings, on the morality of suicide do not come into it. LORD KERR I agree with Lord Neuberger, Lady Hale, Lord Mance, and Lord Wilson that this court has the constitutional authority to issue a declaration of incompatibility. In agreement with Lady Hale, I consider that there is no reason that we should refrain from doing so. The first appeal The overarching issue on the first appeal is whether section 2(1) of the Suicide Act 1961 is incompatible with the appellants rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). If it is incompatible, then it is the duty of this court to say so. That is a duty with which we have been charged by Parliament. And it is a duty from which we cannot be excused by considerations such as that the Director of Public Prosecutions can choose to implement the law in a way that will not infringe the appellants rights, or that Parliament has debated the issue and has decided not to repeal it. In making that declaration we do not usurp the role of Parliament. On the contrary, we do no more than what Parliament has required us to do. Scope of the right In Haas v Switzerland, (2011) 53 EHRR 33 at para 51 the European Court of Human Rights (ECtHR) said: the Court considers that an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. This right against unjustified interference with the freedom to decide by what means and at what point his or her life will end does not impose a positive duty on the state. For it to amount to a positive duty there would have to be some claim that the state was required to furnish the assistance, rather than merely tolerate it. There is no question of the appellants claiming that they should be assisted by the state to do what they want to do. Affirming statements to like effect appear in para 52 of Koch v Germany (2013) 56 EHRR 6 and Gross v Switzerland (2014) 58 EHRR 7, paras 59 and 60. Nor does this right, contrary to what Lord Sumption suggests in paragraph 215 of his judgment, create a right for a third party to assist. The mere fact that giving effect to the right of the person wishing to receive assistance to die has as a corollary that the assister would not be prosecuted does not mean that the assister has a Convention right to so assist. If that were so, the assister would be able to claim independently that he was entitled to render such assistance. No one contemplates that. It is suggested that the words capable of acting in consequence were carefully devised to exclude from the ambit of article 8 those who are physically incapable of bringing about their desired death. I reject that suggestion. Had it been the Strasbourg courts intention to shut out from the application of article 8 those who wished to end their lives but were physically incapable of doing so, one would surely have expected to have that position explicitly stated and, more importantly, the reasons for it expressly articulated. If some mechanical means (which they could activate) of carrying out their wish was available, they would be capable of acting in consequence of their decision. It cannot seriously be suggested that they are incapable because no such mechanical means exists but that there is available to them willing and informed human intervention. The only sensible interpretation of this proviso, and the one that accords with common sense, is simply that the person should be capable of exercising free will at all stages of the process. Reaching a decision and acting in consequence are to be read as amounting to this, the emphasis being on freely rather than on a stepwise reading of what it is that one ought freely to be able to do. Being freely capable of acting on a decision to end ones life does not therefore mean being physically capable of so acting unaided. A person is just as capable of freely acting in consequence of his decision to end his life by recourse to informed and willing assistance to bring that about as he is by drawing exclusively on his own resources. If I wish to die and am physically unable to bring the medication that will end my life to my own lips but have someone who will do that for me, I am acting just as freely by having them do so as if the hand that bore the draught was my own. The starting point, therefore, is that the appellants have a right under article 8 of ECHR to end their lives and to have recourse to willing, informed assistance to bring about their wish. The test to be applied The essential question is therefore whether the interference with that right is justified. Justification of interference with a right to bring intolerable suffering to an end must be of a different order from that which will be required to warrant intervention in most species of article 8 rights. One should not fail to confront the stark reality of this. The appellants are condemned to a life bereft of pleasure or quality. They live in the knowledge of the distress that their condition and their own misery causes to those close to them. The nature of the interference in this case is not in dispute, and the test for whether it is justified is set out in the decisions of the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167 and of this court in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621. In the latter case, Lord Wilson said at para 45: In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham of Cornhill suggested, at para 19, that in such a context four questions generally arise, namely: (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? Before dealing with the substantive application of the test, however, it is necessary to deal with these preliminary questions about how this court should approach the task: (1) the constitutional relationship between the court and Parliament and (2) the standard of review. Margin of appreciation and the division of powers in the British constitution ECtHRs decision in Pretty was that the blanket ban on assisted suicide did not breach Mrs Prettys rights under article 8 of the Convention. But that does not mean that it was found to be proportionate. As Lord Sumption has said in para 218 of his judgment, the ban was capable of being justified because although it applied to many people who were not in need of protection, it was open to the United Kingdom to take the view that it had to apply generally in order to serve the needs of those who were. The fact that it was capable of being justified and that it was open to the United Kingdom to take the view that the provision had to apply generally was sufficient to withstand Strasbourgs scrutiny because their examination is carried out at one remove from that which this court must apply. The context in which justification is to be judged is different in the domestic setting. In R (G) (Adoption: Unmarried Couple) [2009] 1 AC 173 it was held that that a fixed rule which excluded unmarried couples from the process of being assessed as potential adoptive parents interfered with their article 8 and article 14 rights. In so finding, the House of Lords said that it should not be inhibited from going further than the European court had gone because a margin of appreciation was available to member states particularly in delicate areas of social policy. At para 32 Lord Hoffmann said: It must be remembered that the Strasbourg court is an international court, deciding whether a member state, as a state, has complied with its duty in international law to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention. Like all international tribunals, it is not concerned with the separation of powers within the member state. When it says that a question is within the margin of appreciation of a member state, it is not saying that the decision must be made by the legislature, the executive or the judiciary. That is a matter for the member state. Later in his speech, Lord Hoffmann discussed the reasons that courts of this country should normally follow Strasbourg jurisprudence, Then at paras 3638 he said this: But none of these considerations can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says that the question is within the margin of appreciation. 37. In such a case, it is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch. 38. It follows, my Lords, that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status This court is likewise free (and, I would suggest, required) to give a principled and rational interpretation of section 2(1) of the 1961 Act and to determine whether its potential application goes beyond what is required in order to achieve what has been identified by the Strasbourg court in Pretty v United Kingdom, as its aim: to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life (para 74). An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with ECHR. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the courts conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, This particular piece of legislation is incompatible, now it is for you to decide what to do about it. And under the scheme of the Human Rights Act it is open to Parliament to decide to do nothing. What the courts do in making a declaration of incompatibility is to remit the issue to Parliament for a political decision, informed by the courts view of the law. The remission of the issue to Parliament does not involve the courts making a moral choice which is properly within the province of the democratically elected legislature. Lastly in this regard, it is irrelevant to the compatibility of section 2(1) that Parliament has debated this issue a number of times without repealing that section. This is something that the court must determine on the basis of its own evaluation of the evidence. What Parliament has had to say is irrelevant to the courts decision, except in so far as it provides evidence which the court can independently evaluate. Standard of review Lord Mance has referred to the judgments of Arden LJ and Lord Neuberger MR in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] 2 QB 394. The passages from the judgments of Arden LJ and Lord Neuberger to which Lord Mance has alluded (paras 170 and 189) were concerned with the intensity of review of a policy measure of a European Community institution. In my view they cannot be applied to an assessment of proportionality in the present context. The cardinal factor in this case, as established in Re G (Adoption: Unmarried Couple), is the constitutional relationship between our court and the Parliament of the United Kingdom. But the more fundamental objection to this approach is that it appears to suggest that the courts assessment of whether a particular statutory provision is incompatible should be adjusted or, indeed, disavowed, according to the courts perception of whether it or the legislature can lay claim to greater expertise. It appears to me that this is fundamentally at odds with the courts duty under section 4 of the Human Rights Act. Of course, if the court feels that it does not have enough material or even, conceivably, sufficient expertise, to decide whether a particular measure is incompatible with a Convention right, it should decline to make the declaration. The view that Parliament might have the means to consider the issue more fully or on a broader canvas does not impel the conclusion that the courts should shy away from addressing the question whether the provision is incompatible with a Convention right, judged on the material that has been presented. On the contrary, such is the courts duty when presented with that claim. It would be wrong, of course, not to recognise that some forms of interference may present greater challenges than others in terms of justification which depends on practical or empirical evidence. And that it may not be appropriate to insist on evidence of that nature in such instances. The need for a particular measure may not be susceptible of categorical proof. This is especially true in the realm of social policy where the choice between fiercely competing and apparently equally tenable opinions may be difficult to make. In those circumstances a more nuanced approach is warranted to the question of whether the interference is proportional. This should not be confused, however, with deference to the so called institutional competence of the legislature. The courts approach in these difficult areas may call for a less exacting examination of the proffered justification. But this more generous attitude is not based on the view that Parliament is better placed to make a judgment on the need for the measure than is the court or that the court should therefore regard itself as inept to conduct an assessment of the incompatibility of the measure. Rather, it reflects the reality that choices in these areas are difficult to make and that it may not be easy to prove that the right choice has been made. Rational connection In para 215 of his judgment Lord Sumption has identified three points that are made in support of a general prohibition of assisted suicide. He dismisses the first two for reasons with which I agree and on which I do not need to dilate. The third argument, the so called pressure argument, is that which Lord Sumption finds persuasive. This is the argument which proposes that if assisted suicide was lawful, some people would be too ready to bring an end to their lives under real or perceived pressure from others. It is suggested that the great majority of people contemplating suicide for health related reasons are likely to be conscious that their disabilities, because they make them more dependent on others, would feel increased pressure because the legalisation of assisted suicide would be followed by its progressive normalisation. One needs to have a clear view of the nature of the susceptibility of the vulnerable in this area and how it can be said to be increased by making assisted suicide (provided that it is accompanied by appropriate safeguards) available. It is reasonable to assume that this vulnerable class of persons is composed of persons who are physically able to commit suicide. Why should they feel more vulnerable because those who cannot do so are enabled to bring their lives to an end? One can understand that those who consider themselves to be a burden might feel constrained to consider suicide because it no longer attracts the opprobrium that it once did. But why should they be more disposed to do so because of a law which permits those who want to, but cannot, commit suicide to avail of human assistance to bring about their desire? The two situations are not linked in any logical way. On that account I do not consider that it has been demonstrated that there is the necessary rational connection between the aim of the legislation and the interference with the article 8 right. Justification of an interference with a Convention right must be evidence based. In so far as the evidence goes, it conspicuously fails to support the proposition that permitting assisted suicide will increase pressure on the vulnerable and the elderly. Ruminations that this may be the consequence of a more nuanced provision cannot be a substitute for evidence or, at least, some rational basis on which the two circumstances may be found to be connected. Whether no more than necessary It is beyond dispute that section 2(1) applies to many people who are not in need of its protection and who are prejudiced by its application to them. Unless it could be shown that the protection of the vulnerable group could only be achieved by drawing the provision as widely as it has been drawn, it is disproportionate to apply it to a category of persons whose Convention rights are violated in consequence. While, in these appeals, it may not be easy to show, by reference to empirical data, that the protection of vulnerable individuals requires the blanket provision in section 2(1), some basis at least for proposing that it is required must be established. Nothing in the case advanced by the respondent establishes that the appellants inclusion in the group affected was unavoidable to protect the vulnerable group. In the absence of evidenceor at least a tenable basis on which it might be assertedthat this was required, it is impossible to conclude that the interference with the appellants rights is proportionate. In para 112 of his judgment, Lord Neuberger has said, [W]e could properly hold that section 2 infringed article 8. But, he said in para 120, Before we could uphold [that] contention we would have to [be] satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and that the reasonable concerns expressed by the Secretary of State were sufficiently met so as to render the absolute ban on suicide disproportionate. I do not agree that a fully formed, guaranteed to function, less intrusive means of achieving the objective must be established in order to demonstrate the disproportionality of the provision. The imposition of such a requirement would herald a significant circumscription on the operation of the principle of proportionality generally. It is entirely possible to assert that a particular provision would go beyond what it seeks to achieve without having to describe the details of a more tailored measure that would attain that aim. The present case exemplifies and supports that proposition. If it is the case that it is unnecessary, in order to protect those who are vulnerable, to legally forbid those who are incapable of bringing their lives to an end from seeking assistance to do so, why should it be compulsory to show that a more targeted provision is possible? The measure must be intrinsically proportionate. It cannot assert that its proportionality is established by the absence of a viable, less intrusive alternative. If it is disproportionate measured by its capacity to achieve its own purpose, it cannot be saved from that condition by the claim that a less intrusive restriction that would have excluded the appellants has not been articulated. In any event, if it is necessary to conceive of a less intrusive means of protecting the vulnerable in order to find a lack of proportionality in the present law, this is not difficult to find. As Lord Neuberger has pointed out in para 124, the High Court has for more than 25 years sanctioned the bringing to an end of life. Why should it not do so in relation to the type of case with which we are concerned here? It can, of course, be said that this was not examined in any detail during any of the stages that this appeal has passed through. That, I believe, is not the point. If we are concerned with whether an alternative to the present scheme for the protection of the vulnerable is viable, this does not require a close examination of the precise conditions in which such an alternative would operate. To suggest that detailed evidence is required of how such a system would function is to erect an uncalled for hurdle in the way of the inescapable conclusion that an arrangement could undoubtedly be devised that would ensure sufficient protection of the vulnerable. Although the majority of the member states of the Council of Europe prohibit any form of assisted suicide, there is no evidence that in those states which permit it there has been any increase in pressure or exploitation of the position of elderly and vulnerable individuals. Similarly, in other parts of the world such as some of the states in America which permit assisted suicide, no evidence has emerged of the vulnerable, the disadvantaged or the elderly being oppressed. I do not consider, therefore, that there is any reason to conclude that the legitimate aim of protecting members of our society from pressure to commit or contemplate suicide can only be fulfilled by preservation of the law in its present state. I would therefore make a declaration of incompatibility on this basis. Fair balance Section 2(1) does not strike a fair balance between, on the one hand, the rights of those who wish to, but who are physically incapable of, bringing their lives to an end and, on the other, the interests of the community as a whole. Section 2(1) is a yoke from which the appellants yearn to be free. No one has offered a reason that the interests of the community should outweigh that earnest desire beyond that the sanctity of life entails its inviolability by an outsider as Hoffmann LJ put it in Airedale NHS Trust v Bland [1993] AC 789, 831. But what does that mean? A person who is prepared to assist someone who is physically incapable of bringing about the end of his life can hardly be described as an outsider. More importantly, is the sanctity of life protected or enhanced by insisting that those who freely wish to but are physically incapable of bringing their lives to an end, should be required to endure untold misery until a so called natural death overtakes them? I agree with Lord Neuberger that if the store put on the sanctity of life cannot justify a ban on suicide by the able bodied, it is difficult to see how it can justify prohibiting a physically incapable person from seeking assistance to bring about the end of their life. As one of the witnesses for one of the interveners, the British Humanist Association, Professor Blackburn, said, there is no defensible moral principle in denying the appellants the means of achieving what, under article 8 and by all the requirements of compassion and humanity, they should be entitled to do. To insist that these unfortunate individuals should continue to endure the misery that is their lot is not to champion the sanctity of life; it is to coerce them to endure unspeakable suffering. In paras 9094 of his judgment Lord Neuberger considers an argument based on rather different moral considerations. As he has pointed out, this was not covered in the submissions made to the court. It is to the effect that while it may be morally acceptable for a person to set up a system that would allow someone to bring about his death, it is morally unacceptable that an assister should carry out the act which causes the death. It may be true, as Lord Neuberger has said, that the law makes a significant difference between the two situations. But if there are sufficient safeguards in place to ensure that the outcome represents the voluntary, clear, settled and informed wish of the assisted person (and this must underpin the assistance in either form), I question whether there is as clear a moral distinction as Lord Neuberger seeks to draw. If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someones death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assisters aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloveds lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye. Quite apart from the lack of any rational connection between the terms of section 2(1) and its aims, and its failure to do no more than necessary to achieve those aims, I would in any case make a declaration of incompatibility on the basis that it does not strike a fair balance between the appellants rights and those of the community. The second appeal Having concluded that section 2(1) is incompatible with ECHR, I am driven to conclude that it cannot be transformed into a condition of compatibility by guidelines issued by the Director of Public Prosecutions. Even if, as a matter of practical application, the section could be operated in a way that did not give rise to breach of an individuals Convention rights, this could not redeem it from its state of incompatibility. If a provision of an Act of Parliament is incompatible with an applicants Convention right, this is a matter for Parliament. It is an elementary constitutional principle that the executive cannot correct the meaning out of an Act of Parliament. As Lord Browne Wilkinson said in R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, 552: It is for Parliament, not the executive, to repeal legislation. That elementary principle is founded in turn on the distinct powers and responsibilities of Parliament and the executive. These are clearly reflected in the scheme of the Human Rights Act, which above all treats legislation and executive action entirely separately. Its treatment of primary legislation is self contained: if it is incompatible, the court must issue a declaration of incompatibility. There is no scope for avoiding that obligation by requiring an executive agency to apply the incompatible provision in a way that avoids an actual violation of the Convention right. The ethos of the Human Rights Act is to direct remedies to the true source of the incompatibility. The court cannot avoid recognition of the incompatibility by having executive guidance reworked. I would therefore allow the Directors appeal and dismiss Martins cross appeal. |
This appeal arises from steps taken by the appellant, Dallah Real Estate and Tourism Holding Company (Dallah), to enforce in England a final award dated 23 June 2006 made in its favour in the sum of US$20,588,040 against the Government of Pakistan (the Government) by an International Chamber of Commerce (ICC) arbitral tribunal sitting in Paris. The Government has hitherto succeeded in resisting enforcement on the ground that the arbitration agreement was not valid . under the law of the country where the award was made (Arbitration Act 1996, s.103(2)(b), reflecting Article V(I)(a) of the New York Convention), that is under French law. Dallah now appeals. The award was made against the Government on the basis that it was a true party to an Agreement dated 10 September 1996 expressed to be made between and signed on behalf of Dallah and Awami Hajj Trust (the Trust). The Agreement contains an arbitration clause referring disputes or differences between Dallah and the Trust to ICC arbitration. The tribunal in a first partial award dated 26 June 2001 concluded that the Government was a true party to the Agreement and as such bound by the arbitration clause, and so that the tribunal had jurisdiction to determine Dallahs claim against the Government. The central issue before the English courts is whether the Government can establish that, applying French law principles, there was no such common intention on the part of the Government and Dallah as would make the Government a party. Dallah is a member of a group providing services for the Holy Places in Saudi Arabia. It had had long standing commercial relations with the Government. By letter dated 15 February 1995, Mr Shezi Nackvi, a senior director in the Dallah group, made a proposal to the Government to provide housing for pilgrims on a 55 year lease with associated financing. The Government approved the proposal in principle, and a Memorandum of Understanding (MOU) was concluded on 24 July 1995. Land was to be purchased and housing facilities were to be constructed at a total cost not exceeding US$242 million and the Government was to take a 99 year lease subject to Dallah arranging the necessary financing to be secured by the Borrower designated by THE GOVERNMENT under the Sovereign Guarantee of THE GOVERNMENT. The lease and financing terms were to be communicated to the Government within 30 days for approval, and Dallah was to supply detailed specifications within 60 days of the date of such approval. In the event, Dallah in November 1995 acquired a larger and more expensive plot of land than the MOU contemplated, and the timetable was also not maintained. Further, on 21 January 1996 the President of Pakistan promulgated Ordinance No VII establishing the Trust with effect from 14 February 1996. Under article 89(2) of the Constitution of Pakistan, an Ordinance so promulgated shall stand repealed at the expiration of four months from its promulgation, although, under the same article, it should before then have been laid before Parliament, upon which it would have taken effect as a bill. In the event, Parliament appears never to have been involved, but further Ordinances were promulgated to recreate and continue the Trust, viz Ordinance No XLIX of 1996 on a date unknown (presumably prior to 21 May 1996) and No LXXXI of 1996 on 12 August 1996. Under each Ordinance the Trust was to maintain a fund with a trustee bank, to be financed from contributions and savings by pilgrims (Hujjaj) and philanthropists, as well as by any income from investments or property. The Ordinances also assigned functions within the Trust to various public officers. They prescribed, in particular, that the secretary of the Ministry of Religious Affairs (MORA) should act as secretary of the Board of Trustees and (unless some other person of integrity was appointed) as Managing Trustee of the Trust. On 29 February 1996 Dallah wrote to the secretary of MORA with a revised proposal, increasing the cost to US$345 million to take account of the larger plot purchased, setting out options for a new legal and financial structure and stating: Legal issues In order to comply with the legal requirements of the various entities involved, the structure will be as follows: a) Government of Pakistan to set up AWAMI HAJJ TRUST b) Trust will borrow the US$100 Million from Dallah Albaraka c) Trust will make a down payment of US$100 million to Albaraka d) Trust will enter into a lease to use these buildings during the Hajj period Annex A detailed the financial structure: Loan terms for down payment of US $ 100 Million Approx 30% of project cost Amount: US $ 100 Million Borrower: Awami Hajj Trust Guarantor: Government of Pakistan On 3 April 1996 Dallah instructed its lawyers, Orr, Dignam & Co. that the current shape of the transaction involved an agreement to be entered into between Dallah and the Trust on terms which it described. Further negotiations with the Government led to the signing of the Agreement between Dallah and the Trust on 10 September 1996. The Agreement reflected the increased cost of $345 million, out of which it provided that: the Trust shall pay a lump sum of U.S. $ 100 [million] . to Dallah by way of advance . subject to (i) Dallah arranging through one of its affiliates a U.S. Dollar 100 [million] Financing Facility for the Trust against a guarantee of the Government of Pakistan, . (iii) A counter guarantee issued by the Trust and Al Baraka Islamic Investment Bank, E.C., Bahrain, . appointed by the Board of Trustees pursuant to Section 8 of the Awami Hajj Trust Ordinance, 1996 in favour of the Government of Pakistan. Clause 27 provided that: The Trust may assign or transfer its rights and obligations under this Agreement to the Government of Pakistan without the prior consent in writing of Dallah. The Agreement made no other references to the Government and was in terms introducing and setting out mutual obligations on the part of Dallah and the Trust. These included the arbitration clause: 23. Any dispute or difference of any kind whatsoever between the Trust and Dallah arising out of or in connection with this Agreement shall be settled by arbitration held under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris, by three arbitrators appointed under such Rules. On 6 November 1996 Ms Benazir Bhuttos government fell from power, and was replaced by that of Mr Nawaz Sharif. No further Ordinance was promulgated, and the Trust accordingly ceased to exist as a legal entity at midnight on 11 December 1996. It will be necessary to look in detail at correspondence as well as three sets of proceedings in Pakistan which took place during the following years. Dallah invoked ICC arbitration against the Government on 19 May 1998, nominating Lord Mustill as its arbitrator. It is common ground that the Government has throughout the arbitration denied being party to any arbitration agreement, maintained a jurisdictional reservation and not done anything to submit to the jurisdiction of the tribunal or waive its sovereign immunity. The ICC under its Rules appointed Justice Dr Nassim Hasan Shah to act as the Governments arbitrator and Dr Ghaleb Mahmassani to chair the tribunal. Terms of Reference, in which the Government refused to join, were signed by the arbitrators and Dallah in March 1999 and approved by the ICC in April 1999. The tribunal issued its first partial award on its own jurisdiction on 26 June 2001. A second partial award on liability was issued on 19 January 2004 and the final award on 23 June 2006. Leave to enforce the final award in England was given by Order of Christopher Clarke J dated 9 October 2006 on a without notice application by Dallah. The Governments application to set aside the leave led to a three day hearing with oral evidence before Aikens J in July 2008. His judgment setting aside the Order is dated 1 August 2008: [2008] EWHC 1901 (Comm); [2009] 1 All ER (Comm) 505. A further three day hearing led to the Court of Appeals dismissal of Dallahs appeal on 20 July 2009 ([2009] EWCA Civ 755; [2010] 1 AER 592), against which the present appeal lies. On 19 August 2009, Dallah filed an application in the French courts for enforcement of the final award, and, on 12 January 2010, it sought a stay of the present appeal pending the outcome of its French application. On 25 January 2010, the Supreme Court refused such a stay. On 21 December 2009, the Government applied in France to set aside all three awards. It was in time to do this, since, under French law, the limitation period for doing so only starts to run one month after official notification of the award bearing an enforcement order. The issue and the principles governing its resolution The validity of the arbitration agreement depends in the present case upon whether there existed between Dallah and the Government any relevant arbitration agreement at all. Dallahs case is that the Government has at all times been an unnamed party to the Agreement containing the arbitration clause. Before the English courts, this case has been founded on a submission that it was the common intention of the parties that the Government should be such a party to the Agreement. Before the arbitral tribunal Dallah put the matter differently. It argued that either the Trust was the alter ego of the Government or the Government was the successor to the Trust or to the rights and obligations which the Trust had under the Agreement prior to its demise. Neither of these ways of putting the case is now pursued. Dallah did not argue before Aikens J that the Trust was the Governments alter ego (judgment, para 58, footnote 21), and it merely submitted that, if and so far as the Government behaved as if it were a successor to the Trust, this was relevant to the issue of common intention (judgment, paras 94 96). The issue regarding the existence of any relevant arbitration agreement falls to be determined by the Supreme Court as a United Kingdom court under provisions of national law which are contained in the Arbitration Act 1996 and reflect Article V(1)(a) of the New York Convention. The parties submissions before the Supreme Court proceeded on the basis that, under s.103(2)(b) of the 1996 Act and Article V(1)(a) of the Convention, the onus was and is on the Government to prove that it was not party to any such arbitration agreement. This was so, although the arbitration agreement upon which Dallah relies consists in an arbitration clause in the Agreement which on its face only applies as between Dallah and the Trust. There was no challenge to, and no attempt to distinguish, the reasoning on this point in Dardana Limited v Yukos Oil Company [2002] EWCA Civ 543; [2002] 1 All ER (Comm) 819, paras 10 12, and I therefore proceed on the same basis as the parties submissions. S.103(2)(b) and article V(1)(a) raise a number of questions: (a) what is meant by the law of the country where the award was made? (b) what are the provisions of that law as regards the existence and validity of an arbitration agreement? (c) what is the nature of the exercise which an enforcing court must undertake when deciding whether an arbitration agreement existed under such law? and, in particular, (d) what is the relevance of the fact that the arbitral tribunal has itself ruled on the issue of its own jurisdiction? (a) The law of the country where the award was made. It is common ground that the award was made in France and French law is relevant. But it is also common ground that this does not mean the French law that would be applied in relation to a purely domestic arbitration. In relation to an international arbitration, the experts on French law called before Aikens J by Dallah and the Government agreed in their Joint Memorandum (para 2.8) that: Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration . need not be assessed on the basis of a national law, be it the law applicable to the main contract or any other law, and can be determined according to rules of transnational law. The approach taken in French law appears in decisions of the Court of Appeal of Paris, in particular Menicucci v Mahieux [1976] Rev Crit 507 (13 December 1975) and Coumet et Ducler v Polar Rakennusos a Keythio [1990] Rev Arb 675 (8 March 1990), and later in the decision of the Cour de Cassation (1re Ch. Civ) (20 December 1993) in Municipalit de Khoms El Mergeb v Dalico [1994] 1 Rev Arb 116, where the court said that: en vertu dune rgle matrielle du droit international de larbitrage, la clause compromissoire est indpendante juridiquement du contrat principal qui la contient directement ou par rfrence et que son existence et son efficacit sapprcient, sous rserve des rgles impratives du droit franais et de lordre public international, daprs la commune volont des parties, sans quil soit ncessaire de se rfrer une loi tatique . This language suggests that arbitration agreements derive their existence, validity and effect from supra national law, without it being necessary to refer to any national law. If so, that would not avoid the need to have regard to French law as the law of the country where the award was made under Article V(1)(a) of the Convention and s.103(2)(b) of the 1996 Act. The Cour de Cassation is, however, a national court, giving a French legal view of international arbitration; and Dallah and the Government agree that the true analysis is that French law recognises transnational principles as potentially applicable to determine the existence, validity and effectiveness of an international arbitration agreement, such principles being part of French law. As Miss Heilbron QC representing Dallah put it, transnational law is part of French law. Mr Landau QC representing the Government now accepts this analysis (although in his written case, para 157, he appeared to take issue with it and Aikens J, para 93, in fact disregarded transnational law on the basis that it was not part of French law, but relevant only under French conflict of laws principles and so not within Article V(1)(a) and s.103(2)(b)). Since the point is common ground, I merely record that Mr Landau referred the Court to Pierre Mayers note on Ducler in KluwerArbitration, explaining the rationale of the Paris Court of Appeal decisions as being to confine the restrictive provisions of article 2061 of the French Civil Code to internal contracts. He also referred to Fouchard, Gaillard, Goldmans International Commercial Arbitration (1999) (Kluwer), para 440, describing as somewhat unfortunate the terminology used in (French) decisions referring to an arbitration agreement as autonomous from any national law and as having its own effectiveness, and observing that a contract can only be valid by reference to a law that recognises such validity. Finally, in response to a 1977 commentary, suggesting that the validity of an arbitration clause in an international contract resulted solely from the will of the parties, independently of any reference to the law of the main contract, and to any national law and describing this as the ultimate pinnacle of autonomy, Poudret and Bessons Comparative Law of International Arbitration 2nd ed (2007), para 180 also said that: it is only the first two aspects, i.e. indifference to the fate of the main contract and the possibility of being submitted to a separate law, that flow logically from the principle of separability. The latter by no means implies that the arbitration agreement is independent of any national law. The real justification of this regime lies elsewhere: as Philippe Fouchard emphasises in his note on the Menicucci judgment, the aim is to remove the obstacles which certain laws, including French law, bring to the development of international arbitration. Although the judgment does not say so, this new conception of separability implies abandoning the conflict of laws approach in favour of material rules, which are in reality part of French law and not of any international or transnational system. We shall see this point with the Dalico judgment. In the light of the common ground between the parties, it is also unnecessary to engage with the competing representations of international arbitration lucidly discussed in Gaillards Legal Theory of International Arbitration (2010) pp. 13 66. Whatever the juridical underpinning or autonomy of their role from the viewpoint of international arbitrators, the present case involves an application to enforce in the forum of a national court, subject to principles defined by s.103 of the 1996 Act and Article V of the New York Convention, upon the effect of which there is substantial, though not complete, agreement between the parties now before the Supreme Court. (b) The provisions of that law as regards the existence and validity of an arbitration agreement. The parties experts on French law were agreed that a French court would apply a test of common intention to an issue of jurisdiction. Dallahs expert, M. Derains, said this in his written report (p.14): Thus, my Experts opinion is that it is open to an arbitral tribunal seating in Paris in an international arbitration to find that the arbitration agreement is governed by transnational law. Yet, the arbitrators must also look for the common will of the parties, express or implied, since it is a substantive rule of French law that the Courts will apply when controlling the jurisdiction of the arbitrators. In para 2.9 of a joint memorandum to which Aikens J referred in paras 85 et seq of his judgment, the experts agreed upon the following statement: Under French law, in order to determine whether an arbitration clause upon which the jurisdiction of an arbitral tribunal is founded extends to a person who is neither a named party nor a signatory to the underlying agreement containing that clause, it is necessary to find out whether all the parties to the arbitration proceedings, including that person, had the common intention (whether express or implied) to be bound by the said agreement and, as a result, by the arbitration clause therein. The existence of a common intention of the parties is determined in the light of the facts of the case. To this effect, the courts will consider the involvement and behaviour of all the parties during the negotiation, performance and, if applicable, termination of the underlying agreement. The experts agreement summarises a jurisprudence constante in the French courts. The Cour de Cassation endorsed a test of common intention in the case of Dalico (para 14 above). M. Derains endorsed its application to issues such as that in the present case. Aikens J had cited to him the leading decisions of the Paris Court of Appeal spelling out the principle in greater detail in a series of cases concerning international arbitrations: Socit Isover Saint Gobain v Socit Dow Chemical [1984] 1 Rev Arb 98 (21 October 1983), Co. tunisienne de Navigation v Socit Comptoir commercial Andr [1990] 3 Rev Arb 675 (28 November 1989) and Orri v Socit des Lubrifiants Elf Aquitaine [1992] Jur Fr 95 (11 January 1990). In the last case, the Court put the position as follows: Selon les usages du commerce international, la clause compromissoire insre dans un contrat international a une validit et une efficacit propres qui commandent den tendre lapplication aux parties directement impliques dans lexcution du contrat et les litiges qui peuvent en rsulter, ds lors quil est tabli que leur situation contractuelle, leurs activits et les relations commerciales habituelles existent entre les parties font prsumer quelles ont accept la clause darbitrage dont elles connaissaient lexistence et la porte, bien quelles naient pas t signataires du contrat qui la stipulait. In translation: According to the customary practices of international trade, the arbitration clause inserted into an international contract has its own validity and effectiveness which require that its application be extended to the parties directly involved in the performance of the contract and any disputes which may result therefrom, provided that it is established that their contractual situation, their activities and the normal commercial relations existing between the parties allow it to be presumed that they have accepted the arbitration clause of which they knew the existence and scope, even though they were not signatories of the contract containing it. This then is the test which must be satisfied before the French court will conclude that a third person is an unnamed party to an international arbitration agreement. It is difficult to conceive that any more relaxed test would be consistent with justice and reasonable commercial expectations, however international the arbitration or transnational the principles applied. Aikens J recorded that the experts were also agreed that: (i) when the court is looking for the common intention of all the potential parties to the arbitration agreement, it is seeking to ascertain the subjective intention of each of the parties, through their objective conduct. The court will consider all the facts of the case, starting at the beginning of the chronology and going on to the end and looking at the facts in the round (para 87); (ii) when a French court is considering the question of the common intention of the parties, it will take into account good faith (para 90); and (iii) under French law a state entering into an arbitration agreement thereby waives its immunity, both from jurisdiction (as under English law: State Immunity Act 1978, s.9(1) and Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529; [2007] QB 886) and (unlike English law) also from execution (para 91). However the experts disagreed as to whether the last point had any relevance when considering whether a state had entered into such an agreement. In the light of their conflicting evidence on this point, Aikens J found that: (iv) the correct analysis of French law is that when the court is ascertaining the subjective intention of the potential state party to the arbitration agreement, it will bear in mind the fact that the potential state party to the arbitration agreement would lose its state immunity if it were to become a party to the arbitration agreement (para 91). (c) The nature of the exercise which an enforcing court must undertake when deciding whether an arbitration agreement existed under such law, and (d) the relevance of the fact that the arbitral tribunal has itself ruled on the issue of its own jurisdiction. These questions are here linked. Miss Heilbrons primary submission on question (c) is that the only court with any standing to undertake a full examination of the tribunals jurisdiction would be a French court on an application to set aside the award for lack of jurisdiction. An example of the French courts willingness to do this is provided by Rpublique arabe dEgypte v Southern Pacific Properties Ltd [1986] Ju Fr 75; [1987] Ju Fr 469 (12 July 1984, Paris Court of Appeal and 6 January 1987, Cour de Cassation) (the Pyramids case). Article 1502 of the French Code of Civil Procedure entitles a French court to refuse to recognise or enforce an arbitral award made in the absence of any arbitration agreement, while article 1504 entitles the court to set aside an award made in France in an international arbitration on the grounds provided in article 1502. An ICC arbitral tribunal sitting in Paris had held the Arab Republic of Egypt liable as being party to a contract signed between companies in the Southern Pacific group and the Egyptian General Organisation for Tourism and Hotels (EGOTH). On an application by Egypt to set aside the award, the Court of Cassation held that the Court of Appeal had been entitled under articles 1502 and 1504 de rechercher en droit et en fait tous les elements concernant les vices en question (to examine in law and in fact all the elements relevant to the alleged defects: p 470), and that it had on that basis been up to the Court of Appeal to make up its own mind whether the arbitrators had exceeded their jurisdiction. In Miss Heilbrons submission, any enforcing court (other than the court of the seat of the arbitration) should adopt a different approach. It should do no more than review the tribunals jurisdiction and the precedent question whether there was ever any arbitration agreement binding on the Government. The nature of the suggested review should be flexible and nuanced according to the circumstances. Here, Miss Heilbron argues that the answer to question (d) militates in favour of a limited review. She submits that the tribunal had power to consider and rule on its own jurisdiction (Kompetenz Kompetenz or comptence comptence), that it did so after full and close examination, and that its first partial award on jurisdiction should be given strong evidential effect. In these circumstances, she submits, a court should refuse to become further involved, at least when the tribunals conclusions could be regarded on their face as plausible or reasonably supportable. At times, Dallah has put its case regarding the first partial award even higher. In her oral submissions, Miss Heilbron went so far as to suggest that the first partial award was itself an award entitled to recognition and enforcement under the New York Convention. No application for its recognition or enforcement has in fact been made (the present proceedings concern only the final award), but, quite apart from that, the suggestion carries Dallah nowhere. First, (in the absence of any agreement to submit the question of arbitrability itself to arbitration) I do not regard the New York Convention as concerned with preliminary awards on jurisdiction. As Fouchard, Gaillard, Goldmans International Commercial Arbitration, para 654, observes the Convention does not cover the competence competence principle. Dallah could not satisfy even the conditions of Article IV(1) of the Convention and s.102(1)(b) of the 1996 Act requiring the production of an agreement under which the parties agreed to submit the question of arbitrability to the tribunal let alone resist an application under Article V(1)(a) and s.103(2)(b) on the ground that the parties had never agreed to submit that question to the binding jurisdiction of the tribunal. Second, Dallahs case quotes extensively from Fouchard, Gaillard, Goldman, para 658, pointing out that arbitral tribunals are free to rule on their own jurisdiction, but ignores the ensuring para 659, which says, pertinently, that: Even today, the competence competence principle is all too often interpreted as empowering the arbitrators to be the sole judges of their jurisdiction. That would be neither logical nor acceptable. In fact, the real purpose of the rule is in no way to leave the question of the arbitrators jurisdiction in the hands of the arbitrators alone. Their jurisdiction must instead be reviewed by the courts if an action is brought to set aside or to enforce the award. In its written case Dallah also argued that the first partial award gave rise, under English law, to an issue estoppel on the issue of jurisdiction, having regard to the Governments deliberate decision not to institute proceedings in France to challenge the tribunals jurisdiction to make any of its awards. This was abandoned as a separate point by Miss Heilbron in her oral submissions before the Supreme Court, under reference to the Governments recent application to set aside the tribunals awards in France. But, in my judgment, the argument based on issue estoppel was always doomed to fail. A person who denies being party to any relevant arbitration agreement has no obligation to participate in the arbitration or to take any steps in the country of the seat of what he maintains to be an invalid arbitration leading to an invalid award against him. The party initiating the arbitration must try to enforce the award where it can. Only then and there is it incumbent on the defendant denying the existence of any valid award to resist enforcement. Dallahs stance on question (d) cannot therefore be accepted. Arbitration of the kind with which this appeal is concerned is consensual the manifestation of parties choice to submit present or future issues between them to arbitration. Arbitrators (like many other decision making bodies) may from time to time find themselves faced with challenges to their role or powers, and have in that event to consider the existence and extent of their authority to decide particular issues involving particular persons. But, absent specific authority to do this, they cannot by their own decision on such matters create or extend the authority conferred upon them. Of course, it is possible for parties to agree to submit to arbitrators (as it is possible for them to agree to submit to a court) the very question of arbitrability that is a question arising as to whether they had previously agreed to submit to arbitration (before a different or even the same arbitrators) a substantive issue arising between them. But such an agreement is not simply rare, it involves specific agreement (indeed clear and unmistakable evidence in the view of the United States Supreme Court in First Options of Chicago, Inc. v Kaplan 514 US 938, 944 (1995) per Breyer J), and, absent any agreement to submit the question of arbitrability itself to arbitration, the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently: ibid, per Breyer J, p.943. Leaving aside the rare case of an agreement to submit the question of arbitrability itself to arbitration, the concept of competence competence is applied in slightly different ways around the world, but it says nothing about judicial review and it appears that every country adhering to the competence competence principle allows some form of judicial review of the arbitrators jurisdictional decision . : China Minmetals Materials Import and Export Co., Ltd. v Chi Mei Corporation 334 F 3d 274, 288 (2003), where some of the nuances (principally relating to the time at which courts review arbitrators jurisdiction) were examined. In China Minmetals it was again held, following First Options, that under United States law the court must make an independent determination of the agreements validity and therefore of the arbitrability of the dispute, at least in the absence of a waiver precluding the defense: p 289. English law is well established in the same sense, as Devlin J explained in Christopher Brown Ltd v Genossenschaft sterreichischer [1954] 1 QB 8, 12 13, in a passage quoted in the February 1994 Consultation Paper on Draft Clauses and Schedules of an Arbitration Bill of the DTIs Departmental Advisory Committee (then chaired by Lord Steyn): It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to refuse to act until their jurisdiction has been determined by some court which has power to determine it finally. Nor is it the law that they are bound to go on without investigating the merits of the challenge and to determine the matter in dispute, leaving the question of their jurisdiction to be held over until it is determined by some court which had power to determine it. They might then be merely wasting their time and everybody elses. They are not obliged to take either of those courses. They are entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding upon the parties because that they cannot do but for the purpose of satisfying themselves as a preliminary matter whether they ought to go on with the arbitration or not. If it became abundantly clear to them, on looking into the matter, that they obviously had no jurisdiction as, for example, it would be if the submission which was produced was not signed, or not properly executed, or something of that sort, then they might well take the view that they were not going to go on with the hearing at all. They are entitled, in short, to make their own inquiries in order to determine their own course of action, and the result of that inquiry has no effect whatsoever upon the rights of the parties. This coincides with the position in French law: paras 20 and 22 above. An arbitral tribunals decision as to the existence of its own jurisdiction cannot therefore bind a party who has not submitted the question of arbitrability to the tribunal. This leaves for consideration the nature of the exercise which a court should undertake where there has been no such submission and the court is asked to enforce an award. Domestically, there is no doubt that, whether or not a partys challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrators jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose under s.67 of the Arbitration Act 1996, just as he would be entitled under s.72 if he had taken no part before the arbitrator: see e.g. Azov Shipping Co. v Baltic Shipping Co. [1999] 1 Lloyds Rep 68. The English and French legal positions thus coincide: see the Pyramids case (para 20 above). The question is whether the position differs when an English court is asked to enforce a foreign award. There is an irony about Dallahs stance that any enforcing court, other than the court of the seat, has a restricted role in reviewing an arbitral tribunals jurisdiction. The concept of transnational arbitration has been advocated in arbitral circles, and was no doubt recognised by French courts, in order so far as possible to underline the autonomy of international arbitration from the seat of arbitration or its national legal system. What matters in real terms is where an arbitration award can be enforced: see Gaillards Legal Theory of International Arbitration, (op. cit.) Chapter I. Yet Miss Heilbrons submissions invoke in one and the same breath a transnational view and a view attaching a special and dominant significance to the law of the seat. They also invite the spectre of dual sets of proceedings, conducted in two different countries (that of the seat and that of enforcement) involving different levels of review in relation to essentially the same issue whether the award should be enforced in the latter country. It is true that Article V(1)(e) of the Convention and s.103(2)(f) of the 1996 Act recognise the courts of the country in which, or under the law of which an award was made as the courts where an application to set aside or suspend an award may appropriately be made; and also that Article VI and s.103(5) permit a court in any other country where recognition or enforcement of the award is sought to adjourn, if it considers it proper, pending resolution of any such application. But Article V(1)(a) and s.103(2)(b) are framed as free standing and categoric alternative grounds to Article V(1)(e) of the Convention and s.103(2)(f) for resisting recognition or enforcement. Neither Article V(1)(a) nor s.103(2)(b) hints at any restriction on the nature of the exercise open, either to the person resisting enforcement or to the court asked to enforce an award, when the validity (sc. existence) of the supposed arbitration agreement is in issue. The onus may be on the person resisting recognition or enforcement, but the language enables such person to do so by proving (or furnishing proof) of the non existence of any arbitration agreement. This language points strongly to ordinary judicial determination of that issue. Nor do Article VI and s.103(5) contain any suggestion that a person resisting recognition or enforcement in one country has any obligation to seek to set aside the award in the other country where it was made. None of this is in any way surprising. The very issue is whether the person resisting enforcement had agreed to submit to arbitration in that country. Such a person has, as I have indicated, no obligation to recognise the tribunals activity or the country where the tribunal conceives itself to be entitled to carry on its activity. Further, what matters, self evidently, to both parties is the enforceability of the award in the country where enforcement is sought. Since Dallah has chosen to seek to enforce in England, it does not lie well in its mouth to complain that the Government ought to have taken steps in France. It is true that successful resistance by the Government to enforcement in England would not have the effect of setting aside the award in France. But that says nothing about whether there was actually any agreement by the Government to arbitrate in France or about whether the French award would actually prove binding in France if and when that question were to be examined there. Whether it is binding in France could only be decided in French court proceedings to recognise or enforce, such as those which Dallah has now begun. I note, however, that an English judgment holding that the award is not valid could prove significant in relation to such proceedings, if French courts recognise any principle similar to the English principle of issue estoppel (as to which see The Sennar (no. 2) [1985] 1 WLR 490). But that is a matter for the French courts to decide. The nature of the present exercise is, in my opinion, also unaffected where an arbitral tribunal has either assumed or, after full deliberation, concluded that it had jurisdiction. There is in law no distinction between these situations. The tribunals own view of its jurisdiction has no legal or evidential value, when the issue is whether the tribunal had any legitimate authority in relation to the Government at all. This is so however full was the evidence before it and however carefully deliberated was its conclusion. It is also so whatever the composition of the tribunal a comment made in view of Dallahs repeated (but no more attractive for that) submission that weight should be given to the tribunals eminence, high standing and great experience. The scheme of the New York Convention, reflected in ss.101 103 of the 1996 Act may give limited prima facie credit to apparently valid arbitration awards based on apparently valid and applicable arbitration agreements, by throwing on the person resisting enforcement the onus of proving one of the matters set out in Article V(1) and s.103. But that is as far as it goes in law. Dallah starts with advantage of service, it does not also start fifteen or thirty love up. This is not to say that a court seised of an issue under Article V(1)(a) and s.103(2)(b) will not examine, both carefully and with interest, the reasoning and conclusion of an arbitral tribunal which has undertaken a similar examination. Courts welcome useful assistance. The correct position is well summarised by the following paragraph which I quote from the Governments written case: 233. Under s.103(2)(b) of the 1996 Act / Art V.1(a) NYC, when the issue is initial consent to arbitration, the Court must determine for itself whether or not the objecting party actually consented. The objecting party has the burden of proof, which it may seek to discharge as it sees fit. In making its determination, the Court may have regard to the reasoning and findings of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them. The application of the above principles The above principles have already been applied to the facts of this case at two previous instances. Not surprisingly, therefore, most of the emphasis of Dallahs written case and oral submissions before the Supreme Court was on the submissions of principle which have already been considered. In the circumstances and in the light of the careful examination of the whole history in the courts below, it is unnecessary to go once again into every detail. Each of the courts below has paid close attention to the arbitral tribunals reasoning and conclusions, before concluding that the tribunal lacked jurisdiction to make the final award now sought to be enforced. Their examination of the case took place by reference to the same principles that a French court would, on the expert evidence, apply if and when called upon to examine the existence of an arbitration agreement between Dallah and the Government: see paras 17 20 above. It took account of the whole history, including the Governments close involvement with and interest in the project from the original proposal onwards, the negotiation and signature of the MOU with the Government, the creation by the Government of the Trust and the re structuring of the project to introduce the Trust, the negotiation and signature of the Agreement between Dallah and the Trust, the subsequent correspondence, the three sets of proceedings in Pakistan and the arbitration proceedings. The tribunals approach The arbitral tribunal set out its approach to the issue of jurisdiction in the opening paragraphs of its first partial award. Dallah and the Government had argued for a single law governing both arbitral jurisdiction and the substance of the issues: the law of Saudi Arabia in Dallahs submission and the law of Pakistan in the Governments. The tribunal distinguished between jurisdiction and substance, relying on the principle of autonomy of arbitral agreements, and rejected both the suggested national laws. It held (section III(I)) that: 3. Judicial as well as Arbitral case law now clearly recognise that, as a result of the principle of autonomy, the rules of law, applicable to an arbitration agreement, may differ from those governing the main contract, and that, in the absence of specific indication by the parties, such rules need not be linked to a particular national law (French Cour de Cassation, 1er civ., Dec. 20, 1993, Dalico), but may consist of those transnational general principles which the Arbitrators would consider to meet the fundamental requirements of justice in international trade. Dr Justice Shah and Lord Mustill would not endorse without reservation the concept of a transnational procedural law independent of all national laws. They need not however pursue this, since it makes no difference to the result. 4. in view of the autonomy of the Arbitration Agreement, the Tribunal believes that such Agreement is not to be assessed, as to its existence, validity and scope, neither under the laws of Saudi Arabia nor under those of Pakistan, nor under the rules of any other specific local law connected or not, to the present dispute. By reason of the international character of the Arbitration Agreement coupled with the choice, under the main Agreement, of institutional arbitration under the ICC Rules without any reference in such Agreement to any national law, the Tribunal will decide on the matter of its jurisdiction and on all issues relating to the validity and scope of the Arbitration Agreement and therefore on whether the Defendant is a party to such Agreement and to this Arbitration, by reference to those transnational general principles and usages reflecting the fundamental requirements of justice in international trade and the concept of good faith in business. As to what this meant in practice, the tribunal noted (section III(III)(1)) that: a non signatory may be bound by an arbitration agreement, by virtue of any one of a number of legal theories such as representation, assignment, succession, alter ego or the theory of group of companies. It recorded that Dallahs primary case was that the Trust was an alter ego of the Government, but went on immediately to say that: To arbitrate this disputed issue, the Arbitral Tribunal believes that it is very difficult to reason exclusively on the basis of juristic and abstract legal principles and provisions and to decide such issue by merely relying on general considerations of legal theory. The tribunal then described the setting up and organisation of the Trust. It concluded that the rules and regulations provided in the Ordinance did not contain sufficient evidence that would permit it to disregard the Trusts legal entity and to consider that the Trust and the Government are one such entity, and were fully consistent with the general features of the regulations of public entities, and that Such control of the Trust by the Government is not, in itself, sufficiently pertinent to impair the distinct legal personality enjoyed by the Trust or to lead to the disregard of such personality, and therefore to the extension of the Arbitration Agreement from the Trust to the Government. The tribunal, or Dr Shah and Lord Mustill, added that particular caution must be observed where the party sought to be joined as defendant is a state or state body. The tribunal continued (section III(III)): 5. In fact, any reply to the present issue relating to whether or not the Present Defendant is a Party to the Arbitration Agreement depends on the factual circumstances of the case and requires a close scrutiny of the conduct and of the actions of the parties before, during and after the implementation of the main Agreement in order to determine whether the Defendant may be, through its role in the negotiation, performance and termination of such Agreement, considered as a party thereto, and hence to the Arbitration Agreement. The control exercised by the State over the Trust becomes, within that framework, an element of evidence of the interest and the role that the party exercising such control has in the performance of the agreement concluded by the Trust, and provides the backdrop for understanding the true intentions of the parties. 6. Arbitral as well as judicial case law has widely recognised that, in international arbitration, the effects of the arbitration clause may extend to parties that did not actually sign the main contract but that were directly involved in the negotiation and performance of such contract, such involvement raising the presumption that the common intention of all parties was that the non signatory party would be a true party to such contract and would be bound by the arbitration agreement. In the context of the award as a whole, the last paragraph must be a statement by the tribunal of one of the transnational general principles and usages reflecting the fundamental requirements of justice in international trade and the concept of good faith in business, to which the tribunal had earlier referred in section III(I)(4). In this light, the tribunal examined in turn the position prior to, at signature of, and during performance of the Agreement, and during the period after the Trust lapsed. At each point, it focused on the Governments conduct. It considered that it was clearly established that the Trust was organically and operationally under the Governments strict control, that its financial and administrative independence was largely theoretical, and that everything concerning the Agreement was at all times performed by the [Government] concurrently with the Trust and that the Trust functions . reverted back logically to the Government, after the Trust ceased to exist (section III(III)(12 1). The tribunals examination led it to conclude (para 12 1) that: The Trust, in spite of its distinct legal personality in theory, appears thus in fact and in conduct to have been considered and to have acted as a part and a division of the Defendant to which it is fully assimilated, a temporary instrument that has been created by a political decision of the Defendant for specific activities which the Defendant wanted to perform, and which was cancelled also by a political decision of the Defendant. Therefore, the Trust appears as having been no more than the alter ego of the Defendant which appears, in substance, as the real party in interest, and therefore as the proper party to the Agreement and to the Arbitration with the Claimant. The tribunal went on (para 12 2) to say that the Governments behaviour, as in actual fact the party that was involved in the negotiation, implementation and termination of the Agreement . before, during and after the existence of the Trust, shows and proves that the [Government] has always been and considered itself to be a true party to the Agreement . The tribunal acknowledged (para 13) that Certainly, many of the above mentioned factual elements, if isolated and taken into a fragmented way, may not be construed as sufficiently conclusive for the purpose of this section, but it recorded that Dr Mahmassani believed that, when looked at globally as a whole, such elements constitute a comprehensive set of evidence that may be relied upon to conclude that the Defendant is a true party to the Agreement, and that While joining in this conclusion Dr Shah and Lord Mustill note that they do so with some hesitation, considering that the case lies very close to the line. In paragraph 14, the tribunal recorded a further divergence of view, with Dr Mahmassani believing that the general principle of good faith comforts the conclusion that the Trust is the alter ego of the Defendant, but Dr Shah and Lord Mustill not convinced that in matters not concerning the conduct of proceedings but rather the identification of those who should be participants in them, a duty of good faith can operate to make someone a party to an arbitration who on other grounds could not be regarded as such. The tribunals ultimate conclusion on jurisdiction was thus expressed as a finding (in which two of the arbitrators only narrowly concurred) that the Trust was the alter ego of the Government, making the Government a true party to the Agreement. That, as I have said (para 11 above), is not now Dallahs case. But Dallah points out that the tribunals reasoning for its ultimate finding, and the lengthy analysis of conduct and events which the tribunal undertook, can be traced back to para 6 of section (III)(III) of its award, where the tribunal identified a test of common intention to be derived from judicial and arbitral case law. How these strands of thought relate is not to my mind clear. There is a considerable difference between a finding (and between the evidence relevant to a finding) that one of two contracting parties is the alter ego of a third person and a finding that it was the common intention of the other party to the contract that the third person should be a party to the contract made with the first party. The former depends on the characteristics and relationship of the first contracting party and the third person. The latter depends on a common intention on the part of the second contracting party and the third person (and possibly also on the part of the first contracting party, although no one has suggested that the Trust in the present case did not concur in any common intention that Dallah and the Government may be found to have had). Since the tribunal focused throughout on the Trust and Government and their relationship and conduct, and ended with a conclusion that the former was the alter ego of the latter, it is not clear how far the tribunal was in fact examining or making any finding about any common intention of Dallah and the Government. If it was, the weight attaching to the finding is diminished by the tribunals failure to focus on Dallahs intention. The hesitation of two of the arbitrators about the conclusion they reached also suggests the possibility that even a slight difference in the correct analysis of the relevant conduct and events could have led the tribunal overall to a different conclusion. More fundamentally, if and so far as the tribunal was applying a test of common intention, the test which it expressed in section III(III)(6) differs, potentially significantly, from the principle recognised by the relevant French case law on international arbitration. Although the tribunal must have viewed its test as a transnational general principle and usage, it appears likely that it also had the French case law in mind. This is suggested by its use of the words directly involved in and presumption, by its earlier mention of the Dalico case (see para 18 above), and by its letter dated 29 November 2000 written (after the oral hearings before it on jurisdiction) raising the possibility that reasoning embodied in the French Pyramids case might be relevant on the issue of jurisdiction. In any event, in Dallahs submission, the tribunal applied principles which accord broadly with French law. But, the French legal test, set out in para 18 above, is that an international arbitration clause be may extended to non signatories directly involved in the performance of a contract: provided that it is established that their contractual situation, their activities and the normal commercial relations existing between the parties allow it to be presumed that they have accepted the arbitration clause of which they knew the existence and scope. In contrast, under the test stated by the tribunal (para 36 above), direct involvement in the negotiation and performance of the contract is by itself said to raise the presumption of a common intention that the non signatory should be bound. The tribunals test represents, on its face, a low threshold, which, if correct, would raise a presumption that many third persons were party to contracts deliberately structured so that they were not party. Asked about the tribunals test, M. Vatier did not consider it accurate enough, adding that the principles adopted were in general the principles that might be adopted in French law. But they are too general. I consider that Aikens J was therefore correct to doubt (in para 148) whether the tribunal had applied a test which accords with that recognised under French law. Analysis of the history I turn to the conduct of the Government and the events on which the tribunal relied. As to the Ordinance, the tribunal said that it regarded the Governments organic control of the Trust as an element of evidence as to the true intention of the Defendant to run and control directly and indirectly the activities of the Trust, and to view such Trust as one of its instruments. Miss Heilbron accepts that Dallah cannot rely on the last ten words. Dallah is not advancing a case of agency, and the Ordinance does not support a case of agency. The tribunals comment at this point is on its face also inconsistent with the tribunals earlier references to the normality of the control established by the Ordinance (para 35 above). As to the negotiations leading up the Agreement, the courts below were in my view correct to observe that the fact that the Government was itself involved in negotiations and in the MOU and remained interested throughout in the project does not itself mean that the Government (or Dallah) intended that the Government should be party to the Agreement deliberately structured so as to be made, after the Trusts creation, between Dallah and the Trust. It does not appear that a French court would adopt any different attitude to governmental interest and involvement in the affairs of a state entity. An illustration of the careful analysis required in this context is provided by the decision of the Court of Appeal of Paris in the Pyramids case (above). Under Heads of Agreement signed by the Egyptian government through its Minister of Tourism, the Egyptian General Organisation for Tourism and Hotels (EGOTH) and the claimant, the government had committed itself to do the necessary work to acquire property near the Pyramids and EGOTH and the claimants undertook to form a company (to be owned 40/60 by EGOTH and the claimants) to develop a tourist centre on such property. A usufruct over the property was to be given to the company by the government and EGOTH, and the claimants were to be responsible for engineering, construction and architectural services, as well as financing. Subsequently, EGOTH and the claimants entered into a Supplemental Agreement which defined the project and their obligations and contained an ICC arbitration clause. Underneath their respective signatures on this agreement, the Minister of Tourism placed the words approved, agreed and ratified by the Minister of Tourism followed by his signature. A worldwide outcry led to the Egyptian authorities cancelling the project. The Paris Court of Appeal set aside an arbitral award against the state of Egypt, holding that the words and signature added by the Minister did not mean that the state was a party. They were added because the Ministry was responsible for supervising tourist sites and approving the creation of economic complexes and the creation, operation and management of hotels, and EGOTH and the claimants had specifically contemplated that their agreement would be subject to such approval. The added words and signature did not therefore indicate any intention to be bound and so to waive the states immunity. Here, the structure of the Agreement made clear that the Government was distancing itself from any direct contractual involvement: see per Aikens J, para 129 and Moore Bick LJ, para 32. The Governments only role under the Agreement (in the absence of any assignment or transfer under clause 27) was to guarantee the Trusts loan obligations and to receive a counter guarantee from the Trust and its trustee bank. Dallah was throughout this period advised by lawyers, Orr, Dignam & Co. The tribunal confined itself in relation to the Agreement to statements that (a) it was the Government which decided to delegate to the Trust the finalisation, signature and implementation of the Agreement, (b) the Government was contractually involved in the Agreement, as the Government was bound, under Article 2, to give its guarantee and (c) clause 27 authorised the Trust to assign its rights and obligations to the Government without Dallahs prior approval, such a clause being normally used only when the assignee is very closely linked to the assignor or is under its total control . (no doubt true, but on its face irrelevant to the issue). The delegate and bound tend to beg the issue, and nothing in these statements lends any support to Dallahs case that the Agreement evidences or is even consistent with an intention on the part of either Dallah or the Government that the Government should be party to the Agreement. Nowhere did the tribunal address the deliberate change in structure and in parties from the MOU to the Agreement, the potential significance of which must have been obvious to Dallah and its lawyers, but which they accepted without demur. As to performance of the Agreement, between April 1996 and September 1996, exchanges between Dallah and the Ministry of Religious Affairs (MORA) of the Government culminated in agreement that one of Dallahs associate companies, Al Baraka Islamic Investment Bank Ltd., should be appointed trustee bank to manage the Trusts fund as set out in each Ordinance (para 5 above), and in notification by letters dated 30 July and 9 September 1996 of such appointment by the Board of Trustees of the Trust. In subsequent letters dated 26 September and 4 November 1996, the MORA urged Mr Nackvi of the Dallah/Al Baraka group to give wide publicity to the appointment and to the savings schemes proposed to be floated for the benefit of intending Hujjaj. By letter dated 22 October 1996 Dallah submitted to the MORA a specimen financing agreement for the Trust (never in fact approved or agreed), under one term of which the Trust would have confirmed that it was under the control of the Government. The Governments position and involvement in all these respects is clear but understandable, and again adds little if any support to the case for saying that, despite the obvious inference to the contrary deriving from the Agreement itself, any party intended or believed that the Government should be or was party to the Agreement. The fact that the Trust never itself acquired any assets is neutral, since its acquisition of any property always depended upon the arrangement of financing through Dallah, which never occurred, and its acquisition of other funds was to depend on the savings and philanthropic schemes to be arranged through its trustee bank under the Ordinances, the time for which never came. It is scarcely surprising that in these circumstances the Trust never itself acquired its own letter paper, and letters recording its activity were, like those reporting decisions of its Board of Trustees, written on MORA letter paper. At the forefront of Dallahs factual case before the Supreme Court, as below, were exchanges and events subsequent to the Trusts demise. One letter in particular, dated 19 January 1997, was described in Dallahs written case as playing a pivotal role in, and in Miss Heilbrons oral submissions as key to the differing analyses of the tribunal and the courts below. The letter was written by Mr Lutfullah Mufti, signing himself simply as Secretary, on MORA letter paper, and faxed to Dallah on 20 January 1997. It read: Pursuant to the above mentioned Agreement for the leasing of housing facilities in the holy city of Makkah, Kingdom of Saudi Arabia, you were required within ninety (90) days of the execution of the said Agreement to get the detailed specifications and drawings approved by the Trust. However, since you have failed to submit the specifications and drawings for the approval of the Trust to date you are in breach of a fundamental term of the Agreement which tantamounts to a repudiation of the whole Agreement which repudiation is hereby accepted. Moreover, the effectiveness of the Agreement was conditional upon your arranging the requisite financing facility amounting to U.S. $100,000,000.00 within thirty (30) days of the execution of the Agreement and your failure to do so has prevented the Agreement from becoming effective and as such there is no Agreement in law. This is without prejudice to the rights and remedies which may be available to us under the law. Mr Lutfullah Mufti was secretary of MORA from 26 August 1993 to 19 December 1995 and from 23 December 1996 to 3 June 1998, and it will be recalled that, under each Ordinance, the secretary of MORA was at the same time secretary of the Trust. Also on 20 January 1997 Mr Mufti verified on oath the contents of a plaint issued in the name of the Trust as plaintiff to bring the first set of Pakistani proceedings against Dallah. The plaint set out the establishment of the Trust by Ordinance LXXXI of 1996 dated 12 August 1996 as a body having perpetual succession and asserted that Dallah had repudiated the Agreement by failing to submit detailed specifications and drawings within 90 days of the execution of the Agreement which repudiation was accordingly accepted by the plaintiff vide its letter dated 19.01.1997. The Trust sought a declaration that, in consequence of the accepted repudiation, the Agreement was not binding and is of no consequence upon the rights of the plaintiff and a permanent injunction restraining Dallah from claiming any right against the plaintiff. By an undated application, also verified by Mr Mufti, the Trust further sought an interlocutory injunction restraining Dallah from representing or holding out itself to have any contractual relation with the applicant on the basis of the aforesaid repudiated Agreement. Dallah made an application against the Trust for a stay of the Trusts proceedings in favour of arbitration under clause 23 of the Agreement. The application is missing from the bundle, but a written reply to it was put in on behalf of the Trust. This averred, in terms consistent with the stance taken in the plaint (though less obviously consistent with the principle of the separability of arbitration clauses), that since the plaintiff has challenged the very validity and existence of the agreement dated 10.09.1996, the instant application is, therefore, not maintainable. Mr Mufti deposed on oath that allegations evidently made by Dallah against the Trust in its application for a stay were false and that the facts stated in the plaint are true and correct to the best of my knowledge and belief and are reiterated. In early 1998, the first set of Pakistan proceedings were brought to an end by a judgment which commenced by recording that: Counsel for the defendant had objected at the last date of hearing that Awami Haj Trust was established [under section] 3 of the Awami Haj Trust Ordinance, 1996 but at the time of institution of this suit Ordinance had elapsed, there was no more ordinance in the field and suit has been filed on behalf of same which was formed under the Ordinance after the lapse of Ordinance. Awami Haj Trust is plaintiff in this suit. After the lapse of Ordinance, the present plaintiff was no more a legal person in the eye of law. The judge went on to record and reject the submission of counsel appearing for the Trust that the Trust continued to be able to file suit in respect of things done during the life of the Trust, adding: Moreover the things done during the Ordinance can be sued and can sue by the parent department for which this Ordinance was issued by the government and that was ministry for religious affairs. Suit should have been filed by the Ministry of religious affairs. [B]efore parting with this Order, I observe that the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any. Since the suit has not been filed by the legal person. The present plaintiff is no more a plaintiff in the eye of the law. Suit is dismissed. Dallah invoked ICC arbitration against the Government on 19 May 1998, on the basis that the Government was party to the Agreement. Notice of Dallahs request for arbitration was received by the Government on 29 May 1998, and on 2 June 1998 a second Pakistani suit was filed in the Governments name against Dallah, verified once again by Mr Mufti. Its terms were clearly drawn from those of the first suit, but it started by reciting that the Trust established under Ordinance no. LXXXI of 1996 no longer remained in field after the lapse of the Ordinance after four months, and that The present suit is, therefore, being filed by Pakistan who issued the said Ordinance. The plaint went on to recite the Agreement, variously referring to the parties to it, to the Trust as a party, to the plaintiff Trust, to the plaintiff and to Dallahs alleged repudiation which repudiation was accordingly accepted by the plaintiff vide its letter dated 19.01.1997. It further asserted that, on account of such repudiation, the Agreement is no longer binding on the plaintiff and then: 14. That in January 1997, Awami Hajj Trust instituted a civil suit for declaration and permanent injunction against the defendant which suit was, however, dismissed vide order dated 21.02.1998 on the ground that after the lapse of the Ordinance, Awami Hajj Trust was no more a legal person and it could neither sue or be sued. The learned civil court, however observed that liabilities and duties against the defendant can be agitated by the Government of Pakistan [sic]. The plaint concluded by praying for a declaratory decree in favour of the plaintiff that the Agreement stands repudiated on account of default of the defendant . and the same, as such, is not binding and is of no consequence upon the rights of the plaintiff and by seeking a permanent injunction restraining Dallah from claiming any right against the plaintiff under the said Agreement or representing or holding out that it has any contractual relationship with the plaintiff. An interim injunction in the same terms was obtained on 2 June 1998. On 5 June 1998 the Government, through its advocates, wrote to the ICC informing it of the proceedings and the interim injunction as well as relying on s.35 of the Pakistan Arbitration Act 1940 in support of a contention that any further proceedings in the ICC arbitration would be invalid in the light of the Pakistan proceedings. Dallah responded to the second set of Pakistan proceedings on 12 June 1998 with an application for a stay for arbitration, asserting that the contract, admitted by the Plaintiff, which is complete, valid and fully effective between the parties, contains the following clause 23 ., which was then set out. It pointed out, no doubt correctly, that the Governments plaint must be seen as a riposte to the recently notified request for ICC arbitration. The Government replied on 27 June 1998 to the effect that there is no valid and effective Agreement between the parties. The application, as such, is incompetent and is liable to be dismissed. On 15 August 1998 the Governments advocates informed the ICC that the Government has already declined to submit to the jurisdiction of the International Court of Arbitration and spelled out that: There is no contract or any arbitration agreement between our client and Dallah . The contract and the arbitration agreement referred to by the Claimant were entered into between the Claimant and Awami Hajj Trust. The Trust has already ceased to exist after expiry of the period of the Ordinance under which it was established. By a judgment dated 18 September 1998, the judge in the second set of Pakistan proceedings dismissed Dallahs application for a stay for arbitration on the ground that Dallah had neither alleged nor placed on record any instrument of transfer of rights and obligations of the Trust in the name of the [Government], which was not therefore prima facie bound by the Agreement dated 10 September 1996. Dallah appealed on the ground that the Government was successor to the Trust, but on 14 January 1999 the Government withdrew its suit, as it was apparently entitled to, in view of its commencement of the third set of Pakistani proceedings. Dallah has disclaimed, both before the tribunal and before the English courts, any suggestion that these short lived and abortive proceedings could give rise to any estoppel on the issue of the tribunals jurisdiction. But Dallah relies on them in support of its current case of common intention. In the third set of proceedings the Government claimed against Dallah declarations to the effect, inter alia, that it was not successor to the Trust, had not taken over the Trusts responsibilities and was not a party to the Agreement or any arbitration agreement with Dallah. The claim was made under s.33 of the Arbitration Act 1940, which entitles a party to an arbitration agreement or any person claiming under such party to claim relief. Dallahs response was that, since the Government was denying that it was party to an arbitration agreement, it had no locus standi to make the claim. This response was upheld by judgment dated 19 June 1999, against the Governments argument that the purpose of s.33 was to enable a party alleged to be party to an arbitration agreement to seek the relief it claimed. An appeal by the Government to the Lahore High Court was dismissed, again on the basis that the Government was not a party to the Agreement or arbitration agreement. An appeal to the Pakistan Supreme Court has apparently remained unresolved. No evidence was adduced from Mr Mufti before Aikens J. Aikens J said, in relation to the letter dated 19 January 1997 that, logically Mr Mufti must, in fact, have been writing the letter in his capacity of Secretary to MORA, whatever he may have thought at the time, but Aikens J found it possible to get a clearer indication of the state of mind of the [Government] at this stage by reference to the proceedings begun by Mr Mufti on 20 January 1997 (paras 117, 119). These indicated, in Aikens Js view, that Mr Mufti thought that the Trust had rights it could enforce, and that there was no intention on the part of the Government to be bound by the Agreement or to step into the shoes of the Trust (para 119). The Court of Appeal took a slightly different view. It observed that the fact that, after the Trust ceased to exist, Mr Mufti could not have been writing (as opposed, I add, to purporting to write) as secretary to the Board of Trustees did not necessarily mean that he was writing on behalf of the Government or that the Government viewed itself as a party to the Agreement (Moore Bick LJ, para 36). Moore Bick LJ continued: If, as I think likely, the letter was written in ignorance that the Trust had ceased to exist, it is almost certain that Dallah was equally unaware of the fact and that it was read and understood as written on behalf of the Trust. Miss Heilbron challenges this reasoning as regards the Government, and invites attention to the letter on its face and to the Governments stance in the second set of Pakistan proceedings. But one obvious explanation of the letter, read with the first set of proceedings of which it was clearly the precursor, is that neither Mr Mufti nor indeed Dallah was at that stage conscious of the drastic effect under Pakistan law of the failure to repromulgate the Ordinance. Even if Mr Mufti was aware of the Trusts demise, he may well have believed (and one may understand why) that this could not affect the Trusts right to litigate matters arising during and out of the Trusts existence which was the stance taken by counsel for the Trust when Dallah eventually realised and pointed out that the Trust had lapsed. However that may be, it seems clear that Mr Mufti was in January 1997 acting on the basis that and as if the Trust existed. Further, Dallah clearly cannot have appreciated that the Trust had ceased to exist until a late stage in the course of the first set of Pakistan proceedings. The arbitral tribunal regarded the letter dated 19 January 1997 as very significant because it confirmed in the clearest way possible that the Defendant [the Government], after the elapse of the Trust, regarded the Agreement with the Claimant as its own and considered itself as a party to such Agreement (para 11 1). It went on to say that the Governments position in the arbitration: did not deal with the substance and contents of such letter, but was rather limited to a formal and very general challenge of the validity of said letter, on the ground that such letter was absolutely unauthorised, illegal and of no legal effect because all office bearers of the Trust, including the Secretary, had ceased to have any authority to act for the defunct Trust. Such challenge is however completely unfounded as the signatory of the letter of 19.1.97, Mr Lutfallah Mufti, did not sign such letter in his capacity as official of the Trust, to which anyhow the letter makes no reference at all, but in his capacity as Secretary of the Defendant i.e. the Ministry of Religious Affairs which is an integral part of the Government of Pakistan. As such, the signatory of the letter engages and binds the Government, as he has continued to bind it during the whole previous period where the Trust was in existence. Several features of the arbitral tribunals reliance on the letter are notable. First, the tribunal did not put the letter in its context. It did not mention the first set of proceedings at all in addressing the letters significance. In fact, it referred to those proceedings only once in its whole award. That was much earlier in para 5(c) where it recited three short submissions by the Government With respect to the effect of the legal proceedings in Pakistan. The first such submission read: The 1st [sic] January 1997 suit : Pakistan was not a party to such suit and as such it is not bound by any observation made by the Court in the said suit instituted by the defunct Trust. (In making this submission, the Government was evidently seeking to rebut a possible argument that it might be bound by the (obiter) observations of the judge in his judgment at the end of the first set of proceedings to the effect that the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any. It has not been, and could not have been suggested in the present proceedings that these observations in any way bind the Government.) Secondly, the tribunal rejected any idea that Mr Mufti was, when writing the letter, acting in a manner which was absolutely unauthorised, illegal and of no legal effect. But that, on any view, was precisely what Mr Mufti can be seen, with hindsight, to have been doing, on the same day as the letter was faxed, by commencing the first set of proceedings in the Trusts name. Thirdly, the tribunals comments on the letter assume that the Government or Mr Mufti on its behalf was aware of the elapse of the Trust and believed that this ended any possibility of the Trust taking any legal stance or proceedings. That, for reasons I have indicated, cannot have been the case. He must at least have believed that it was still possible for action to be taken in the Trusts name in respect of matters arising from the Agreement. Fourth, the tribunal, in this context as in others, did not address Dallahs state of mind, or its objective manifestation an important point when considering a test based on common intention. The letter dated 19 January 1997 and faxed on 20 January 1997 cannot be read in a vacuum, particularly when the issue is whether the parties shared a common intention, manifested objectively, to treat the Government as a or the real party to the Agreement and arbitration clause. Read in the objectively established context which I have indicated, it is clear that it was written and intended as a letter setting out the Trusts position by someone who believed that the Trust continued either to exist or at least to have a sufficient existence in law to enable it to take a position on matters arising when the Ordinance was in force. This is precisely how the plaint of 20 January 1997 put the matter when it said that the repudiation was accordingly accepted by the plaintiff [i.e. the Trust] vide its letter dated 19.01.1997. It makes no sense to suppose that Mr Mufti on one and the same day sent a letter intended to set out the Governments position and caused proceedings to be issued by the Trust on the basis that the letter was intended to set out the Trusts position. That Dallah also believed that the Trust continued to exist, certainly in a manner sufficient to enable it to pursue the proceedings, is confirmed by Dallahs application to stay the Trusts proceedings pending arbitration and is also (as I understood her) admitted by Miss Heilbron. The arbitral tribunal also relied on the second set of Pakistan proceedings and on the Governments letter dated 5 June 1998 to the tribunal. It saw Mr Muftis verification on oath of the plaint dated 2 June 1998 as an admission providing another piece of evidence to be added to the other pieces, as to the fact that the [Government] has always been and has considered itself a party to the agreement, and the letter as an admission that it was a party to such Agreement and that it could accept repudiation of the Agreement by [Dallah] (para 11 2). Aikens J and the Court of Appeal did not accept this analysis. They considered that the second set of proceedings viewed overall was premised on the basis that the Government had succeeded to the Trusts rights and obligations upon the Trusts demise, not that the Government had been a party to it always or at any previous date. The Government was taking up the suggestion of the judge who, when determining the first set of proceedings, had remarked that the liabilities and duties against the present defendant can be agitated by the Ministry of Religious affairs government of Pakistan if any. In my opinion this analysis is clearly correct. If the search is for confirmation of an intention to be or belief that the Government was party to the Agreement throughout, the second set of proceedings does not therefore advance the matter. Nor does the letter dated 5 June 1998. This was written to draw express attention to the second set of proceedings, and it recorded and attached a copy of the Pakistan judges injunction in them restraining Dallah from representing or holding out itself to have contractual relations with the applicant on the basis of the disputed contract. Further, nothing affirmed by the Government during the second set of proceedings or in the letter throws any light on Dallahs intention at any prior date, or therefore assists the case that there was any common intention that the Government should always be party to the Agreement. If the search is for an admission in or after June1998 that the Agreement or arbitration clause was binding on the Government, this is equally lacking. The Governments case in the second set of proceedings, and the gist of the injunction and the letter dated 5 June 1998 was that, although the Government could agitate the former Trusts rights and liabilities, the Governments acceptance of Dallahs alleged repudiation meant that the Agreement as such, is not binding and is of no consequence upon the rights of the [Government] (plaint of 20 January 1997). However questionable the proposition that an accepted repudiation renders the whole agreement (let alone an arbitration clause) not binding, that was the Governments case, and such a case is inconsistent with an intention to be party to the Agreement or agreement clause in or after June 1998. Further and in any event, a very short time afterwards on 15 August 1998 the Government wrote to the tribunal making clear also its current position that it had never been party to any contract or arbitration agreement with Dallah. Even if the Government could be treated in June as having made any relevant, short lived admission, it would in context and in the overall course of events be incapable of giving rise to any real inference that the Government had always intended or been intended to be a party to the Agreement. Finally, the search for a subjective common intention under the principle recognised by the French courts must be undertaken by examining, and so through the prism of, the parties conduct. Account will in that sense necessarily be taken of good faith. The tribunal also described the transnational general principles and usages, which it decided to apply, as reflecting the fundamental requirements of justice in international trade and the concept of good faith in business (award, section III (I)(4)), and this must also be true of the principle recognised by the French courts. As both Aikens J (para 130) and Moore Bick LJ (para 45) said, and in agreement on this point with Justice Dr Shah and Lord Mustill, if conduct interpreted as it would be understood in good faith does not indicate any such common intention, then it is impossible to see how a duty of good faith can operate to make someone a party to an arbitration who on other grounds could not be regarded as such (award, section (III)(III)(14)). This remains so, whatever comments might or might not be made about the Governments conduct in allowing the Trust to lapse without providing for the position following its lapse. In my view, the third re examination by this court, in the light of the whole history, of the issue whether the Government was party to the Agreement, and so to its arbitration clause, leads to no different answer to that reached in the courts below. The arbitral tribunals contrary reasoning is neither conclusive nor on examination persuasive in a contrary sense. As to the law, it is far from clear that the tribunal was directing its mind to common intention and, if it was, it approached the issue of common intention in terms differing significantly from those which a French court would adopt. In any event, as to the facts, there are a number of important respects in which the tribunals analysis of the Governments conduct and the course of events cannot be accepted, and this is most notably so in relation to the significance of the letter dated 19 January 1997 and the second set of proceedings in Pakistan. The upshot is that the course of events does not justify a conclusion that it was Dallahs and the Governments common intention or belief that the Government should be or was a party to the Agreement, when the Agreement was deliberately structured to be, and was agreed, between Dallah and the Trust. Discretion Dallah has a fall back argument, which has also failed in both courts below. It is that s.103(2) of the 1996 Act and Article V(1) of the New York Convention state that Recognition and enforcement of the award may be refused if the person against whom such is sought proves (or furnishes proof of) one of the specified matters. So, Miss Heilbron submits, it is open to a court which finds that there was no agreement to arbitrate to hold that an award made in purported pursuance of the non existent agreement should nonetheless be enforced. In Dardana Ltd v Yukos Oil Company [2002] 1 All ER (Comm) 819 I suggested that the word may could not have a purely discretionary force and must in this context have been designed to enable the court to consider other circumstances, which might on some recognisable legal principle affect the prima facie right to have enforcement or recognition refused (paras 8 and 18). I also suggested as possible examples of such circumstances another agreement or estoppel. S.103(2) and Article V in fact cover a wide spectrum of potential objections to enforcement or recognition, in relation to some of which it might be easier to invoke such discretion as the word may contains than it could be in any case where the objection is that there was never any applicable arbitration agreement between the parties to the award. Article II of the Convention and ss.100(2) and 102(1) of the 1996 Act serve to underline the (in any event obviously fundamental) requirement that there should be a valid and existing arbitration agreement behind an award sought to be enforced or recognised. Absent some fresh circumstance such as another agreement or an estoppel, it would be a remarkable state of affairs if the word may enabled a court to enforce or recognise an award which it found to have been made without jurisdiction, under whatever law it held ought to be recognised and applied to determine that issue. The factors relied upon by Dallah in support of its suggestion that a discretion should be exercised to enforce the present award amount for the most part to repetition of Dallahs arguments for saying that there was an arbitration agreement binding on the Government, or that an English court should do no more than consider whether there was a plausible or reasonably supportable basis for its case or for the tribunals conclusion that it had jurisdiction. But Dallah has lost on such points, and it is impossible to re deploy them here. The application of s.103(2) and Article V(1) must be approached on the basis that there was no arbitration agreement binding on the Government and that the tribunal acted without jurisdiction. General complaints that the Government did not behave well, unrelated to any known legal principle, are equally unavailing in a context where the Government has proved that it was not party to any arbitration agreement. There is here no scope for reliance upon any discretion to refuse enforcement which the word may may perhaps in some other contexts provide. Conclusion It follows that Aikens J and the Court of Appeal were right in the conclusions they reached and that Dallahs appeal to this Court must be dismissed. LORD COLLINS Introduction I agree that this appeal from the excellent judgments of Aikens J [2009] 1 All ER (Comm) 505 and the Court of Appeal [2010] 2 WLR 805 (with Moore Bick and Rix LJJ giving the reasons) should be dismissed. Because of the international importance of the issues on the appeal, I set out the steps which have led me to that conclusion. The final award is a Convention award which prima facie is entitled to enforcement in England under the Arbitration Act 1996, section 101(2). The principal issue is whether the courts below were right to find that the Government has proved that on the proper application of French law (as the law of the country where the award was made, since there is no indication in the Agreement as to the law governing the arbitration agreement), it is not bound by the arbitration agreement. To avoid any misunderstanding, it is important to dispel at once the mistaken notion (which has, it would appear, gained currency in the international arbitration world) that this is a case in which the courts below have recognised that the arbitral tribunal had correctly applied the correct legal test under French law. On the contrary, one of the principal questions before all courts in this jurisdiction has been whether the tribunal had applied French law principles correctly or at all. The main issue involves consideration of these questions: (a) the role of the doctrine that the arbitral tribunal has power to determine its own jurisdiction, or Kompetenz Kompetenz, or comptence comptence; (b) the application of arbitration agreements to non signatories (including States) in French law, and the role of transnational law or rules of law in French law; (c) whether renvoi is permitted under the New York Convention (and therefore the 1996 Act) and whether the application by an English court of a reference by French law to transnational law or rules of law is a case of renvoi. There is also a subsidiary issue as to whether, even if the Government has proved that it is not bound by the arbitration agreement, the court should exercise its discretion ( enforcement may be refused ) to enforce the award. By Article V(1)(a) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958: Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) the [arbitration] agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; The New York Convention is given effect in the United Kingdom by Part III of the Arbitration Act 1996 (England and Wales and Northern Ireland) and by sections 18 to 22 of the Arbitration (Scotland) Act 2010. Article V(1)(a) of the New York Convention is transposed in England and Wales and Northern Ireland by section 103 of the 1996 Act, which provides: (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases. (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; Although Article V(1)(a) (and section 103(2)(b)) deals expressly only with the case where the arbitration agreement is not valid, the consistent international practice shows that there is no doubt that it also covers the case where a party claims that the agreement is not binding on it because that party was never a party to the arbitration agreement. Thus in Dardana Ltd v Yukos Oil Co [2002] 2 Lloyds Rep 326 it was accepted by the Court of Appeal that section 103(2)(b) applied in a case where the question was whether a Swedish award was enforceable in England against Yukos on the basis that, although it was not a signatory, it had by its conduct rendered itself an additional party to the contract containing the arbitration agreement. In Sarhank Group v Oracle Corp, 404 F 3d 657 (2d Cir 2005) the issue, on the enforcement of an Egyptian award, was whether a non signatory parent company was bound by an arbitration agreement on the basis that its subsidiary, which had signed the agreement, was a mere shell; and in China Minmetals Materials Import and Export Co Ltd v Chei Mei Corpn, 334 F 3d 274 (3d Cir 2003) enforcement of a Chinese award was resisted on the ground that the agreement was a forgery. See also Born, International Commercial Arbitration (2009), pp 2778 2779. In this case, because there was no indication by the parties of the law to which the arbitration agreement was subject, French law as the law of the country where the award was made, is the applicable law, subject to the relevance of transnational law or transnational rules under French law. II The applicable principles Kompetenz Kompetenz or comptence comptence as a general principle A central part of this appeal concerns the authority to be given to the decision of the arbitral tribunal as to its own jurisdiction, and the relevance in this connection of the doctrine of Kompetenz Kompetenz or comptence comptence. These terms may be comparatively new but the essence of what they express is old. The principle was well established in international arbitration under public international law by the 18th century. In the famous case of The Betsy (1797) the question was raised as to the power of the commissioners under the Mixed Commissions organised under the Jay Treaty between United States and Great Britain of 19 November 1794 to determine their own jurisdiction. On 26 December 1796 Lord Loughborough LC had a meeting at his house with the American Commissioners and the American Ambassador. The Lord Chancellor expressed the view that the doubt respecting the authority of the commissioners to settle their own jurisdiction, was absurd; and that they must necessarily decide upon cases being within, or without, their competency: Moore, History and Digest of International Arbitrations to which the United States has been a Party, Vol 1 (1898), p 327. While the point was under discussion, the American Commissioners filed opinions. Mr. Christopher Gore, the eminent American Commissioner, said: A power to decide whether a Claim preferred to this Board is within its Jurisdiction, appears to me inherent in its very Constitution, and indispensably necessary to the discharge of any of its duties: Moore, op cit, Vol.3 (1898), p 2278. The principle has been recognised by the Permanent Court of International Justice and the International Court of Justice: Rosenne, The Law and Practice of the International Court 1920 1996 (3rd ed 1997), Vol II, pp 846 et seq. In the Advisory Opinion on the Interpretation of the Greco Turkish Agreement (1928) Series B No 16, 20, the Permanent Court of International Justice said: as a general rule, any body possessing jurisdictional powers has the right in the first place itself to determine the extent of its jurisdiction . In the Nottebohm case (Liechtenstein v Guatemala), 1953 ICJ Rep 111, 119, the International Court of Justice, after referring to the Alabama case in 1872, and the views of the rapporteur of the Hague Convention of 1899 for the Pacific Settlement of International Disputes, said: it has been generally recognised.thatan international tribunal has the right to decide as to its own jurisdiction. The principle has been recognised also by the European Court of Justice. In West Tankers Inc v Allianz SpA (formerly Ras Riunione Adriatica di Sicurta SpA) (Case C 185/07) [2009] ECR I 663, [2009] AC 1138, para 57, it referred to the general principle that every court is entitled to examine its own jurisdiction (doctrine of Kompetenz Kompetenz). The principle that a tribunal has jurisdiction to determine its own jurisdiction does not deal with, or still less answer, the question whether the tribunals determination of its own jurisdiction is subject to review, or, if it is subject to review, what that level of review is or should be. Thus the International Courts decision on jurisdiction is not subject to recourse, although the State which denies its jurisdiction may decline to take any part at all in the proceedings (as in the Fisheries Jurisdiction cases (Federal Republic of Germany v Iceland; United Kingdom v Iceland), 1972 1974), or to take any further part after it has failed in its objections to the jurisdiction (as in Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v United States, 1986). By contrast, a decision of an ICSID tribunal (which shall be the judge of its own competence: Article 41(1) of the ICSID Convention) is subject to annulment on the grounds (inter alia) that the tribunal manifestly exceeded its powers (article 52(1)(b)), which includes lack of jurisdiction: Klckner v Cameroon, Decision on Annulment, 2 ICSID Rep 95; Schreuer, The ICSID Convention: A Commentary (2nd ed 2009), pp 943 947. The principle in international commercial arbitration So also the principle that a tribunal in an international commercial arbitration has the power to consider its own jurisdiction is no doubt a general principle of law. It is a principle which is connected with, but not dependant upon, the principle that the arbitration agreement is separate from the contract of which it normally forms a part. But it does not follow that the tribunal has the exclusive power to determine its own jurisdiction, nor does it follow that the court of the seat may not determine whether the tribunal has jurisdiction before the tribunal has ruled on it. Nor does it follow that the question of jurisdiction may not be re examined by the supervisory court of the seat in a challenge to the tribunals ruling on jurisdiction. Still less does it mean that when the award comes to be enforced in another country, the foreign court may not re examine the jurisdiction of the tribunal. Thus Article 16(1) of the UNCITRAL Model Law on International Commercial Arbitration provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. But by article 34(2) an arbitral award may be set aside by the court of the seat if an applicant furnishes proof that the agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the law of the seat (and see also article 36(1)(a)(i)). Articles V and VI of the European Convention on International Commercial Arbitration of 1961 also preserve the respective rights of the tribunal and of the court to consider the question of the jurisdiction of the arbitrator. Comparative procedure Consequently in most national systems, arbitral tribunals are entitled to consider their own jurisdiction, and to do so in the form of an award. But the last word as to whether or not an alleged arbitral tribunal actually has jurisdiction will lie with a court, either in a challenge brought before the courts of the arbitral seat, where the determination may be set aside or annulled, or in a challenge to recognition or enforcement abroad. The degree of scrutiny, particularly as regards the factual enquiry, will depend on national law, subject to applicable international conventions. There was sometimes said to be a rule in German law that an arbitral tribunal had the power to make a final ruling on its jurisdiction without any court control, but if it ever existed, there is no longer any such rule: Poudret and Besson, Comparative Law of International Arbitration (2nd ed 2007), para 457; Born, International Commercial Arbitration, vol I (2009), pp 907 910. In France the combined effect of articles 1458, 1466 and 1495 of the New Code of Civil Procedure (NCPC) is that, in an international arbitration conducted in France, the tribunal has power to rule on its jurisdiction if it is challenged. If judicial proceedings are brought in alleged breach of an arbitration agreement the court must declare that it has no jurisdiction unless the jurisdiction agreement is manifestly a nullity: Fouchard, Gaillard, Goldman, International Commercial Arbitration (ed Gaillard and Savage 1999), paras 655, 672; Delvolv, Pointon and Rouche, French Arbitration Law and Practice (2nd ed. 2009), paras 139 et seq, 172 et seq; and eg Soc Laviosa Chimica Mineraria v Soc Afitex, Cour de cassation, 11 February 2009, 2009 Rev Arb 155 (Vu le principe comptence comptence selon lequel il appartient larbitre de statuer par priorit sur sa propre competence). But the position is different once the arbitral tribunal has ruled on its jurisdiction. Its decision is not final and can be reviewed by the court hearing an action to set it aside. The French Cour dappel seised of an action for annulment of an award made in France for lack of jurisdiction, or seised with an issue relating to the jurisdiction of a foreign tribunal or an appeal against an exequatur granted in respect of a foreign award, has the widest power to investigate the facts: Fouchard, Gaillard, Goldman, paras 1605 to 1614; Delvolv, Pointon and Rouche, para 426. In the Pyramids case (Rpublique Arabe dEgypte v Southern Pacific Properties Ltd, Paris Cour dappel, 12 July 1984 (1985) 10 Yb Comm Arb 113; Cour de cassation, 6 January 1987 (1987) 26 ILM 1004) the question was whether a distinguished tribunal had been entitled to find that Egypt (as opposed to a State owned entity responsible for tourism) was a party to an arbitration agreement. The Cour dappel said that the arbitral tribunal had no power finally to decide the issue of its jurisdiction; if it decided the issue of the existence or of the validity of the arbitration agreement, nevertheless it only decided this question subject to the decision of the court on an application for the annulment of the award pursuant to article 1504, NCPC. The Cour de cassation confirmed that the Cour dappel had been entitled de rechercher en droit et en fait tous les elements concernant les vices en question en particulier, il lui appartient dinterprter le contrat pour apprcier elle mme si larbitre a statu sans convention darbitrage. (to examine as a matter of law and as a matter of fact all circumstances relevant to the alleged defects in particular, it is for the court to construe the contract in order to determine itself whether the arbitrator ruled in the absence of an arbitration agreement.) First Options of Chicago Inc v Kaplan, 514 US 938 (1995) was not an international case. It concerned the application of the Federal Arbitration Act to an award of an arbitral panel of the Philadelphia Stock Exchange. The question was whether the federal District Court should independently decide whether the arbitral panel had jurisdiction. The United States Supreme Court drew a distinction between the case where the parties had agreed to submit the arbitrability question itself to arbitration, and the case where they had not. In the former case the court should give considerable leeway to the arbitrator, setting aside the award only in certain narrow circumstances, but (at 943, per Breyer J): If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently. That flowed inexorably from the fact that arbitration was simply a matter of contract between the parties and was a way to resolve those disputes, but only those disputes, that the parties had agreed to submit to arbitration. This decision was applied in the international context, in connection with the enforcement of a CIETAC award, in China Minmetals Materials Import and Export Co Ltd v Chei Mei Corpn, 334 F 3d 274 (3d Cir 2003) in which Minmetals, a Chinese corporation, sought to enforce a CIETAC award against Chei Mei, a New Jersey corporation. Chei Mei resisted enforcement on the ground that the contract containing the arbitration clause had been forged. The tribunal had held that Chei Mei failed to show that the contracts were forged, but that even if its signature and stamp had been forged, it had taken various steps which confirmed its adherence to the arbitration agreement. The Court of Appeals for the Third Circuit decided that the court asked to enforce an award may determine independently the arbitrability of the dispute. After an illuminating discussion of the doctrine of comptence comptence and kompetenz kompetenz, it concluded (at 288, citing Park, Determining Arbitral Jurisdiction: Allocation of Tasks Between Courts and Arbitrators (1997) 8 Am Rev Int Arb 133, 140 142) that it appears that every country adhering to the competence competence principle allows some form of judicial review of the arbitrators jurisdictional decision where the party seeking to avoid enforcement of an award argues that no valid arbitration agreement ever existed. The court said (ibid): After all, a contract cannot give an arbitral body any power, much less the power to determine its own jurisdiction, if the parties never entered into it. The position in England Prior to the 1996 Act the leading authority in England was Christopher Brown Ltd v Genossenschaft Osterreichischer [1954] 1 QB 8, in which Devlin J said (at pp 12 13): It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to refuse to act until their jurisdiction has been determined by some court which has power to determine it finally. Nor is it the law that they are bound to go on without investigating the merits of the challenge and to determine the matter in dispute, leaving the question of their jurisdiction to be held over until it is determined by some court which had power to determine it. They might then be merely wasting their time and everybody elses. They are not obliged to take either of those courses. They are entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding upon the parties because that they cannot do but for the purpose of satisfying themselves as a preliminary matter whether they ought to go on with the arbitration or not. If it became abundantly clear to them, on looking into the matter, that they obviously had no jurisdiction as, for example, it would be if the submission which was produced was not signed, or not properly executed, or something of that sort, then they might well take the view that they were not going to go on with the hearing at all. They are entitled, in short, to make their own inquiries in order to determine their own course of action, and the result of that inquiry has no effect whatsoever upon the rights of the parties. The DTI Departmental Advisory Committee in its February 1994 Report on a draft Arbitration Bill said: [The German] doctrine of Kompetenz Kompetenz resolves logical difficulties in legal systems where the jurisdiction of state courts and the jurisdiction of arbitrators under a valid arbitration agreement are mutually exclusive in legal theory. In these legal systems, the state courts must dismiss legal proceedings brought in violation of a valid arbitration agreement, thereby retaining no competence over the parties but in the case of an invalid or non existent arbitration agreement, the arbitrators can have no jurisdiction at all. Who then decides what and in what order in the absence of a suitable doctrine of Kompetenz Kompetenz? In contrast, the courts of most common law countries (including England) merely stay legal proceedings because in legal theory an arbitration agreement can never oust the Courts jurisdiction over the parties; and this logical problem over jurisdiction has not arisen in the same form For these reasons, the law and practice of English arbitration does not require an express doctrine of Kompetenz Kompetenz. English law achieves the same result as the German doctrine by a different route. [T]he practice of arbitration tribunals determining their own jurisdiction, subject to the final decision of the English Court, has long been settled in England . (Ch III, pp 4 5) The position in England under the Arbitration Act 1996 as regards arbitrations the seat of which is in England is as follows. By section 30(1) of the 1996 Act, which is headed Competence of tribunal to rule on its own jurisdiction the arbitral tribunal may rule on its own substantive jurisdiction, including the question whether there is a valid arbitration agreement. By section 30(2) any such ruling may be challenged (among other circumstances) in accordance with the provisions of the Act. Section 32 gives the court jurisdiction to determine any preliminary point on jurisdiction but only if made with the agreement of all parties or with the permission of the tribunal, and the court is satisfied (among other conditions) that there is good reason why the matter should be decided by the court. By section 67 a party to arbitral proceedings may challenge any award of the tribunal as to its substantive jurisdiction but the arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court is pending in relation to an award as to jurisdiction. The equivalent provisions in Scotland are in the Arbitration (Scotland) Act 2010, Sched 1, Rules 19, 42 (not limited to jurisdiction), and 67. The consistent practice of the courts in England has been that they will examine or re examine for themselves the jurisdiction of arbitrators. This can arise in a variety of contexts, including a challenge to the tribunals jurisdiction under section 67 of the 1996 Act, or in an application to stay judicial proceedings on the ground that the parties have agreed to arbitrate. Thus in Azov Shipping Co v Baltic Shipping Co [1999] 1 Lloyds Rep 68 Rix J decided that where there was a substantial issue of fact as to whether a party had entered into an arbitration agreement, then even if there had already been a full hearing before the arbitrator the court, on a challenge under section 67, should not be in a worse position than the arbitrator for the purpose of determining the challenge. This decision has been consistently applied at first instance (see, eg, Peterson Farms Inc v C&M Farming Ltd [2004] EWHC 121 (Comm), [2004] 1 Lloyds Rep 603) and is plainly right. Where there is an application to stay proceedings under section 9 of the 1996 Act, both in international and domestic cases, the court will determine the issue of whether there ever was an agreement to arbitrate: Al Naimi (t/a Buildmaster Construction Services) v Islamic Press Agency [2000] 1 Lloyds Rep 522 (CA) (English arbitration); Albon (t/a NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 4) [2007] EWCA Civ 1124, [2008] 1 Lloyds Rep 1 (Malaysian arbitration). So also where an injunction was refused restraining an arbitrator from ruling on his own jurisdiction in a Geneva arbitration, the Court of Appeal recognised that the arbitrator could consider the question of his own jurisdiction, but that would only be a first step in determining that question, whether the subsequent steps took place in Switzerland or in England: Weissfisch v Julius [2006] EWCA Civ 218, [2006] 1 Lloyds Rep 716, para 32. Consequently, in an international commercial arbitration a party which objects to the jurisdiction of the tribunal has two options. It can challenge the tribunals jurisdiction in the courts of the arbitral seat; and it can resist enforcement in the court before which the award is brought for recognition and enforcement. These two options are not mutually exclusive, although in some cases a determination by the court of the seat may give rise to an issue estoppel or other preclusive effect in the court in which enforcement is sought. The fact that jurisdiction can no longer be challenged in the courts of the seat does not preclude consideration of the tribunals jurisdiction by the enforcing court: see, e.g. Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529, [2007] QB 886, para 104; Paklito Investment Ltd v Klockner East Asia Ltd [1993] 2 HKLR 39, 48, per Kaplan J. The application of the principles in the present case Dallahs argument is that the enforcing court, faced with a decision by the tribunal that it has jurisdiction, should only conduct a limited review. The argument is essentially this: (1) The arbitral tribunal remained a competent tribunal to determine its own jurisdiction, whether or not it determined it wrongly. (2) The first partial award was made with jurisdiction i.e. the Kompetenz Kompetenz jurisdiction, even if (on the English courts view) the later awards relating to the merits were subsequently found to be made without substantive jurisdiction. (3) It is universally accepted that an enforcing court cannot review the merits of an award, and a de novo rehearing at the enforcement stage (by contrast with an application to set aside at the seat of the arbitration) adds a fact finding layer to the process which was not envisaged by those drafting the New York Convention and which undermines the finality and efficiency of the system. (4) The review envisaged by the New York Convention is premised on the need to ensure that there is not a grave departure from the basic precepts of international arbitration and fairness and basic concepts of justice. (5) The award is itself an evidential element of the reviewing process, and deference must be given to such an award by the reviewing/enforcing court. (6) The degree of deference may vary according to many factors, for example, the experience of the tribunal or the nature of the underlying decision, such as whether it was one of fact or law or mixed fact and law, and enforcing courts must be particularly wary where, as here, the underlying decision is fact based or a case of mixed fact and law. (7) Where, as here, there is no dispute as to the underlying facts or law such that the decision is one upon which different tribunals can legitimately come to different conclusions, enforcing national courts should be slow to substitute their own interpretation unless it can be shown that the tribunals decision was unsustainable, and this is particularly so where, as in this case, the resisting party has offered no new evidence. (8) In essence the issue in this case is whether the English court should refuse to enforce the award on the basis that its views and interpretation of the same facts, applying the same principles of law, should be preferred to the decision of a former Law Lord and a doyen of international arbitration, a former Chief Justice of Pakistan and an eminent Lebanese lawyer. Dallah relies in particular on international authorities relating to applications to annul awards on the basis that the matters decided by the arbitral tribunal exceeded the scope of the submission to arbitration: article V(1)(c) of the New York Convention; article 34 of the UNCITRAL Model Law. In Parsons & Whittemore Overseas Co Inc v Soc Gn de lIndustrie du Papier, 508 F 2d 969 (2d Cir 1974) the Court of Appeals for the Second Circuit, in dealing with an attack on a Convention award based on Article V(1)(c), said (at p 976) that the objecting party must overcome a powerful presumption that the arbitral body acted within its powers. That statement was applied by the British Columbia Court of Appeal, in a case under article 34 of the Model Law as enacted by the International Commercial Arbitration Act, SBC 1986: Quintette Coal Ltd v Nippon Steel Corpn [1991] 1 WWR 219 (BCCA). These cases are of no assistance in the context of a challenge based on the initial jurisdiction of the tribunal and in particular when it is said that a party did not agree to arbitration. Nor is any assistance to be derived from Dallahs concept of deference to the tribunals decision. There is simply no basis for departing from the plain language of article V(1)(a) as incorporated by section 103(2)(b). It is true that the trend, both national and international, is to limit reconsideration of the findings of arbitral tribunals, both in fact and in law. It is also true that the Convention introduced a pro enforcement policy for the recognition and enforcement of arbitral awards. The New York Convention took a number of significant steps to promote the enforceability of awards. The Geneva Convention placed upon the party seeking enforcement the burden of proving the conditions necessary for enforcement, one of which was that the award had to have become final in the country in which it was made. In practice in some countries it was thought that that could be done only by producing an order for leave to enforce (such as an exequatur) and then seeking a similar order in the country in which enforcement was sought, hence the notion of double exequatur (but in England it was decided, as late as 1959, that a foreign order was not required for the enforcement of a Geneva Convention award under the Arbitration Act 1950, section 37: Union Nationale des Co opratives Agricoles des Crales v Robert Catterall & Co Ltd [1959] 2 QB 44). The New York Convention does not require double exequatur and the burden of proving the grounds for non enforcement is firmly on the party resisting enforcement. Those grounds are exhaustive. But article V safeguards fundamental rights including the right of a party which has not agreed to arbitration to object to the jurisdiction of the tribunal. As van den Berg, The New York Arbitration Convention of 1958 (1981) puts it, at p 265: In fact, the grounds for refusal of enforcement are restricted to causes which may be considered as serious defects in the arbitration and award: the invalidity of the arbitration agreement, the violation of due process, the award extra or ultra petita, the irregularity in the composition of the arbitral tribunal or the arbitral procedure, the non binding force of the award, the setting aside of the award in the country of origin, and the violation of public policy. In Kanoria v Guinness [2006] 1 Lloyds Rep 701, 706, May LJ said that section 103(2) concerns matters that go to the fundamental structural integrity of the arbitration proceedings. Nor is there anything to support Dallahs theory that the New York Convention accords primacy to the courts of the arbitral seat, in the sense that the supervisory court should be the only court entitled to carry out a re hearing of the issue of the existence of a valid arbitration agreement; and that the exclusivity of the supervisory court in this regard ensures uniformity of application of the Convention. There is nothing in the Convention which imposes an obligation on a party seeking to resist an award on the ground of the non existence of an arbitration agreement to challenge the award before the courts of the seat. It follows that the English court is entitled (and indeed bound) to revisit the question of the tribunals decision on jurisdiction if the party resisting enforcement seeks to prove that there was no arbitration agreement binding upon it under the law of the country where the award was made. Arbitration agreements and non signatories: groups of companies/State owned entities and States One of the most controversial issues in international commercial arbitration is the effect of arbitration agreements on non signatories: among many others see, eg, Hanotiau, Non Signatories in International Arbitration: Lessons from Thirty Years of Case Law, in International Arbitration 2006: Back to Basics? (2007, ed van den Berg), p 341; Park, Non signatories and International Contracts: An Arbitrators Dilemma, in Multiple Party Actions in International Arbitration (ed Macmahon, Permanent Court of Arbitration, 2009), p 1. The issue has arisen frequently in two contexts: the first is the context of groups of companies where non signatories in the group may seek to take advantage of the arbitration agreement, or where the other party may seek to bind them to it. The second context is where a State owned entity with separate legal personality is the signatory and it is sought to bind the State to the arbitration agreement. Arbitration is a consensual process, and in each type of case the result will depend on a combination of (a) the applicable law; (b) the legal principle which that law uses to supply the answer (which may include agency, alter ego, estoppel, third party beneficiary); and (c) the facts of the individual case. One of the decisions in the field of groups of companies best known internationally is the Dow Chemical case in France, which arose in the context of the setting aside of a French award. The arbitrators (Professors Sanders, Goldman and Vasseur: (1984) 9 Yb Comm Arb 131) decided that non signatory companies in a group could rely on an arbitration clause in contracts between Isover St Gobain and two Dow Chemical group companies. The tribunal said that a group of companies constituted one and the same economic reality (une realit conomique unique) of which the tribunal should take account when it ruled on its jurisdiction. It decided that it was the mutual intention of all parties that the group companies should have been real parties to the agreement. They relied in particular on the fact that group companies participated in the conclusion, performance and termination of the contract, and on the economic reality and needs of international commerce. The Paris Cour dappel rejected an application to set aside the award: the effect of the ICC Rules was that the tribunal was bound to take account of the will of the parties and of trade usages; in the light of the agreements and of the documents exchanged in the course of their conclusion and termination, the tribunal had given relevant and consistent reasons for deciding that it was the joint intention of the parties that Dow Chemicals France and Dow Chemical Company had been parties to the agreements (and therefore to the arbitration agreements) although they had not physically signed them. The court also mentioned that as a subsidiary reason the tribunal had invoked the notion of the group of companies, which had not been seriously disputed by Isover St Gobain: Soc. Isover Saint Gobain v Soc. Dow Chemical France, 21 October 1983, 1984 Rev Arb 98. For other cases see, eg, Redfern and Hunter, International Arbitration (5th ed 2009, ed Blackaby and Partasides), paras 2.44 2.45; Wilske, Shore and Ahrens, The Group of Companies Doctrine Where is it heading? (2006) 17 Am Rev Int Arb 73. As regards States, the Pyramids case (Rpublique Arabe dEgypte v Southern Pacific Properties Ltd, above, para 89) was also a case of setting aside rather than enforcement of a foreign award. A company incorporated in Hong Kong (SPP) signed an agreement with an Egyptian state owned entity responsible for tourism (EGOTH). The contract referred to a pre existing framework contract between the same parties and the Egyptian Government concerning the construction of two tourist centres, one of which was located near the Pyramids. The contract contained an ICC arbitration clause with Paris as the seat. The last page of the agreement contained the words approved, agreed and ratified followed by the signature of the Egyptian Minister for Tourism. After political opposition to the project, the Egyptian authorities cancelled it, and SPP initiated arbitration proceedings against both EGOTH and Egypt. The arbitral tribunal, with Professor Giorgio Bernini as Chairman, ruled that it had jurisdiction, because, although acceptance of an arbitration clause had to be clear and unequivocal, there was no ambiguity since the Government, in becoming a party to the agreement, could not reasonably have doubted that it would be bound by the arbitration clause contained in it. The Egyptian Government brought proceedings in France to set aside the award. The combined effect of articles 1502 and 1504, NCPC, is that the French court may set aside an award made in France in an international arbitration on the ground that there is no arbitration agreement. The Paris Cour dappel held that the Government was not a party to the arbitration agreement because the words under the Ministers signature were to be read in the light of Egyptian legislation which simply gave the Minister the power to approve construction and in the light of a declaration by the signatories that the obligations assumed by EGOTH would be subject to approval by the relevant government authorities. Subsequently an ICSID Tribunal found that it had jurisdiction and awarded the claimants $27m: 3 ICSID Rep 131 and 189. See also the Westland case in the Swiss courts, involving the application of an arbitration agreement in a contract between Westland Helicopters and the Arab Organisation for Industrialisation to the organisations member States: (1991) 16 Yb Comm Arb 174; and Lew, Mistelis and Krll, Comparative International Commercial Arbitration (2003), paras 27 26 et seq; Westland Helicopters Ltd v Arab Organisation for Industrialisation [1995] QB 282. An example in England of a foreign award prior to the present case is Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529, [2007] QB 886, where the Court of Appeal, after a review of the principal arbitral decisions, confirmed (at para 81 et seq) that a government is not to be taken to be a party to an agreement or to have submitted to arbitration simply because it has put forward a state organisation to contract with a foreign investor. But on the facts the Government had agreed to ICC arbitration in Denmark. French law and transnational law The Joint Memorandum of the experts stated (para 2.8): Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration need not be assessed on the basis of national law, be it the law applicable to the main contract or any other law and can be determined according to rules of transnational law. To this extent, it is open to an international arbitral tribunal the seat of which is in Paris to find that the arbitration agreement is governed by transnational law. The notion in French law that an arbitration clause may be valid independently of a reference to national law goes back to the decisions of the Cour de cassation in Hecht v Buismans, 4 July 1972, 1974 Rev Crit 82 and of the Paris Cour dappel in Menicucci v Mahieux, 13 December 1975, 1976 Rev Crit 507: see Fouchard, Gaillard, Goldman, para 418; Poudret and Besson, para 180. In the Dow Chemical case the Paris Cour dappel (21 October 1983, 1984 Rev Arb 98) said that the arbitral tribunal could decide on its competence without reference to French law, and could rely on the notion of the group of companies as a customary practice in international trade. In the Dalico case (Municipalit de Khoms El Mergeb v Soc Dalico, 20 December 1993, 1994 Rev Arb 116) the Cour de cassation was concerned with an application to set aside an award in which an arbitral tribunal had upheld the existence and validity of an arbitration clause in a document annexed to a works contract between a Libyan municipal authority and a Danish company (Dalico). The main contract was subject to Libyan law and stipulated standard terms and conditions, amplified or amended by an annex, which formed part of the contract. The standard terms and conditions conferred jurisdiction on the Libyan courts, but the annex amended them by providing for international arbitration. Dalico referred the dispute to arbitration and obtained an award against the Libyan municipal authority. An action to set aside the award was brought before the Paris Cour dappel. The court dismissed the application to set aside, relying in particular on the fact that the principle of the autonomy of the arbitration agreement confirms the independence of the arbitration clause, not only from the substantive provisions of the contract to which it relates, but also from a domestic law applicable to that contract. The court held that the wording of the documents revealed the parties intention to submit their dispute to arbitration. The Cour de cassation dismissed an appeal, emphasising that the Cour dappel justified its decision in law by establishing the existence of the arbitration agreement without reference to Libyan law, which governed the contract. The Cour de cassation said, at p 117: en vertu dune rgle matrielle du droit international de larbitrage, la clause compromissoire est indpendante juridiquement du contrat principal qui la contient directement ou par rfrence et que son existence et son efficacit sapprcient, sous rserve des rgles imperatives de droit franais et de lordre public international, daprs la commune volont des parties, sans quil soit ncessaire de se rfrer une loi tatique . (by virtue of a substantive rule of international arbitration, the arbitration agreement is legally independent of the main contract containing or referring to it, and the existence and effectiveness of the arbitration agreement are to be assessed, subject to the mandatory rules of French law and international public policy, on the basis of the parties common intention, there being no need to refer to any national law.). On this case see Fouchard, Gaillard, Goldman, paras 388, 452. The fact that the experts were agreed that an arbitral tribunal with a French seat may apply transnational law or transnational rules to the validity of an arbitration agreement does not mean that a French court would not be applying French law or that it is no longer a French arbitration. It simply means that the arbitration agreement is no longer affected by the idiosyncrasies of local law, and its validity is examined solely by reference to the French conception of international public policy: Fouchard, Gaillard, Goldman, paras 420, 441. As Poudret and Besson put it (at para 181): The result of this case law is that the arbitration agreement is subjected to a material rule which recognises its validity provided it does not violate international public policy. Although this has been the subject of controversy, the rule is an international rule of French law and not a transnational rule. Nor could there be any suggestion that the application of transnational law or transnational rules could displace the applicability in England, under article V(1)(a) of the New York Convention as enacted by section 103(2)(b) of the 1996 Act, of the law of the place where the award is made. This case does not therefore raise the controversial question of delocalisation of the arbitral process which has been current since the 1950s. It started with the pioneering work of Professor Berthold Goldman, Professor Pierre Lalive and Professor Clive Schmitthoff, which was mainly devoted to the question of disconnecting the substantive governing law in international commercial arbitration from national substantive law. It expanded to promotion of the notion that international arbitration is, or should be, free from the controls of national law, or as Lord Mustill put it in SA Coppe Lavalin NV v Ken Ren Chemicals and Fertilizers Ltd [1995] 1 AC 38, 52, a self contained juridical system, by its very nature separate from national systems of law: see, among many others, Lew, Achieving the Dream: Autonomous Arbitration (2006) 22 Arb Int 179; Gaillard, Legal Theory of International Arbitration (2010); Paulsson, Arbitration in Three Dimensions (LSE Law, Society and Economy Working Papers 2/2010); the older material cited in Dicey, Morris and Collins, The Conflict of Laws (14th ed 2006), para 16 032; and the cases on the enforcement in France of awards which have been annulled in the country where they were rendered on the basis that they were international awards which were not integrated in the legal system of that country, e.g. Soc PT Putrabali Adyamulia v Soc Rena Holding, Cour de cassation, 29 June 2007 (2007) 32 Yb Comm Arb 299, and below at para 129. Non signatories: the principle in French law One of the odd features of this case is that there is nothing in the experts reports which suggests that there is any relevant difference between French arbitration law in non international cases and the principle in such cases as Dalico. When counsel was asked at the hearing of this appeal what difference it made, there was no satisfactory answer. No doubt that is because common intention would serve equally to answer the question in a non international case: cf Loquin, Arbitrage, para 18, in Juris Classeur Procdure Civile, Fasc 1032. As M Yves Derains (Dallahs expert) put it in his report, the arbitrators may find that the arbitration agreement is governed by transnational law, but the arbitrators must also look for the common will of the parties, express or implied, since it is a substantive rule of French law that the courts will apply when examining the jurisdiction of the arbitrators. There was, in the event, a large measure of agreement between the experts on French law who appeared before Aikens J, M le Btonnier Vatier for the Government and M Yves Derains for Dallah. In their Joint Memorandum they agreed that in order to determine whether an arbitration clause upon which the jurisdiction of an arbitral tribunal is founded extends to a person who is neither a named party nor a signatory to the underlying agreement containing that clause, it is necessary to find out whether all the parties to the arbitration proceedings, including that person, had the common intention (whether express or implied) to be bound by the agreement and, as a result, by the arbitration clause; the existence of a common intention of the parties is determined in the light of the facts of the case; the courts will consider the involvement and behaviour of all the parties during the negotiation, performance and, if applicable, termination of the underlying agreement. When a French court has to determine the existence and effectiveness of an arbitration agreement, and when for these purposes it must decide whether the agreement extends to a party who was neither a signatory nor a named party, it examines all the factual elements necessary to decide whether that agreement is binding upon that person. The fact that an arbitration agreement is entered into by a State owned entity does not mean that it binds the State, and whether the State is bound depends on the facts in the light of the principles. The principle as expressed in the jurisprudence of the Paris Cour dappel is as follows: Selon les usages du commerce international, la clause compromissoire insre dans un contrat international a une validit et une efficacit propres qui commandent den tendre lapplication aux parties directement impliques dans lexcution du contrat et les litiges qui peuvent en rsulter, ds lors quil est tabli que leur situation contractuelle, leurs activits et les relations commerciales habituelles existant entre les parties font prsumer quelles ont accept la clause darbitrage dont elles connaissaient lexistence et la porte, bien quelles naient pas t signatoires du contrat qui la stipulait. (According to international usage, an arbitration clause inserted in an international contract has a validity and an effectiveness of its own, such that the clause must be extended to parties directly implicated in the performance of the contract and in any disputes arising out of the contract, provided that it has been established that their respective contractual situations and existing usual commercial relations raise the presumption that they accepted the arbitration clause of whose existence and scope they were aware, irrespective of the fact that they did not sign the contract containing the arbitration agreement. See Orri v Soc. des Lubrifiants Elf Acquitaine, 11 January 1990, 1991 Rev Arb 95 (affd Cour de cassation, 11 June 1991, 1992 Rev Arb 73, on different grounds); also Socit Korsnas Marma v Soc DurandAuzias, 30 November 1988, 1989 Rev Arb 691; Compagnie tunisienne de navigation (Cotunav) v Soc Comptoir commercial Andr, 28 November 1989, 1990 Rev Arb 675. The principle applies equally where a non signatory seeks the benefit of an arbitration agreement, as in Dalico itself and in Dow Chemicals. The common intention of the parties means their subjective intention derived from the objective evidence. M le Btonnier Vatier, the Governments expert, confirmed in his oral evidence that under French law the court must ascertain the genuine, subjective, intention of each party, but through its objective conduct, and M Yves Derains, Dallahs expert, agreed. M Derains confirmed that in order for an act (such as the letter of termination) of the Government to have the effect of establishing the subjective intention on the Governments part to be bound by the arbitration agreement, it would have to be a conscious, deliberate act by the government; that anything less than a conscious and deliberate act of the government might make the letter less relevant; and that the letter would not be relevant if it was written by mistake. Renvoi The parties were agreed before Aikens J that article V(1)(a) of the New York Convention established two conflict of laws rules. The first was the primary rule of party autonomy: the parties could choose the law which governed the validity of the arbitration agreement. In default of that agreement, the law by which to test validity was that of the country where the award to be enforced was made. Because they were to be treated as uniform conflict of laws rules, the reference to the law of the country where the award was made in article V(1)(a) of the New York Convention and the same words in section 103(2)(b) of the 1996 Act must be directed at that countrys substantive law rules, rather than its conflicts of law rules. Aikens J also drew support from section 46(2) in Part I of the 1996 Act, which defines the law chosen by the parties as the substantive laws of that country and not its conflict of laws rules, and which was specifically inserted to avoid the problems of renvoi: Mustill & Boyd, Commercial Arbitration, 2001 Companion (2001), p 328. Aikens J considered that the same approach was intended for section 103(2)(b) in Part III of the 1996 Act, and that he should have regard to French substantive law and not its conflict of laws rules (at para 78) and that the principle of French law that the existence of an arbitration agreement in an international context may be determined by transnational law was a French conflict of laws rule (at para 93). It is likely that renvoi is excluded from the New York Convention: see van den Berg, The New York Convention of 1958 (1981), p 291. But it does not follow that for an English court to test the jurisdiction of a Paris tribunal in an international commercial arbitration by reference to the transnational rule which a French court would apply is a case of renvoi. Renvoi is concerned with what happens when the English court refers an issue to a foreign system of law (here French law) and where under that countrys conflict of laws rules the issue is referred to another countrys law. That is not the case here. What French law does is to draw a distinction between domestic arbitrations in France, and international arbitrations in France. It applies certain rules to the former, and what it describes as transnational law or rules to the latter. As mentioned above, the applicability of transnational rules or law (and there was no evidence on their content) would not make a difference in this case. But even if there were a difference, there is not, according to English notions, any reference on to another system of law. All that French law is doing is distinguishing between purely domestic cases and international cases and applying different rules to the latter. If a French court would apply different principles in an international case, for an English court to do what a French court would do in these circumstances is not the application of renvoi. Discretion The court before which recognition or enforcement is sought has a discretion to recognise or enforce even if the party resisting recognition or enforcement has proved that there was no valid arbitration agreement. This is apparent from the difference in wording between the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 and the New York Convention. The Geneva Convention provided (article 1) that, to obtain recognition or enforcement, it was necessary that the award had been made in pursuance of a submission to arbitration which was valid under the law applicable thereto, and contained (article 2) mandatory grounds (shall be refused) for refusal of recognition and enforcement, including the ground that it contained decisions on matters beyond the scope of the submission to arbitration. Article V(1)(a) of the New York Convention (and section 103(2)(b) of the 1996 Act) provides: Recognition and enforcement of the award may be refused See also van den Berg, p 265; Paulsson, May or Must Under the New York Convention: An Exercise in Syntax and Linguistics (1998) 14 Arb Int 227. Since section 103(2)(b) gives effect to an international convention, the discretion should be applied in a way which gives effect to the principles behind the Convention. One example suggested by van den Berg, op cit, p 265, is where the party resisting enforcement is estopped from challenge, which was adopted by Mance LJ in Dardana Ltd v Yukos Oil Co [2002] 2 Lloyds Rep 326, para 8. But, as Mance LJ emphasised at para 18, there is no arbitrary discretion: the use of the word may was designed to enable the court to consider other circumstances, which might on some recognisable legal principle affect the prima facie right to have an award set aside arising in the cases listed in section 103(2). See also Kanoria v Guinness [2006] 1 Lloyds Rep 701, para 25 per Lord Phillips CJ. Another possible example would be where there has been no prejudice to the party resisting enforcement: China Agribusiness Development Corpn v Balli Trading [1998] 2 Lloyds Rep 76. But it is not easy to see how that could apply to a case where a party had not acceded to an arbitration agreement. There may, of course, in theory be cases where the English court would refuse to apply a foreign law which makes the arbitration agreement invalid where the foreign law outrages its sense of justice or decency (Scarman Js phrase in In the Estate of Fuld, decd (No 3) [1968] P 675, 698), for example where it is discriminatory or arbitrary. The application of public policy in the New York Convention (article V(2)(b)) and the 1996 Act (section 103(3)) is limited to the non recognition or enforcement of foreign awards. But the combination of (a) the use of public policy to refuse to recognise the application of the foreign law and (b) the discretion to recognise or enforce an award even if the arbitration agreement is invalid under the applicable law could be used to avoid the application of a foreign law which is contrary to the courts sense of justice. Only limited assistance can be obtained from those cases in which awards have been enforced abroad (in particular in France and the United States) notwithstanding that they have been set aside (or supended) in the courts of the seat of arbitration. In France the leading decisions are Pabalk Ticaret Sirketi v Norsolor, Cour de cassation, 9 October 1984, 1985 Rev Crit 431; Hilmarton Ltd v OTV, Cour de cassation, 23 March 1994 (1995) 20 Yb Comm Arb 663, in which a Swiss award was enforced in France even though it had been set aside in Switzerland: the award rendered in Switzerland is an international award which is not integrated in the legal system of that State, so that it remains in existence even if set aside (at p 665); Rpublique arabe dEgypte v Chromalloy Aero Services, Paris Cour dappel, 14 January 1997 (1997) 22 Yb Comm Arb 691. Thus in Soc PT Putrabali Adyamulia v Soc Rena Holding, Cour de cassation, 29 June 2007 (2007) 32 Yb Comm Arb 299, an award in an arbitration in England which had been set aside by the English court (see PT Putrabali Adyamulia v Soc Est Epices [2003] 2 Lloyds Rep 700) was enforced in France, on the basis that the award was an international award which did not form part of any national legal order. Those decisions do not rest on the discretion to allow recognition or enforcement notwithstanding that the award has been set aside by a competent authority of the country in which that award was made (New York Convention, article V(1)(e)). They rest rather on the power of the enforcing court under the New York Convention, article VII(1), to apply laws which are more generous to enforcement than the rules in the New York Convention: see Born, International Commercial Arbitration (2009), pp 2677 2680; Gaillard, Enforcement of Awards Set Aside in the Country of Origin (1999) 14 ICSID Rev 16; and Yukos Capital SARL v OAO Rosneft, 28 April 2009, Case No 200.005.269/01 Amsterdam Gerechtshof. In the United States the courts have refused to enforce awards which have been set aside in the State in which the award was made, on the basis that the award does not exist to be enforced if it has been lawfully set aside by a competent authority in that State: Baker Marine (Nigeria) Ltd v Chevron (Nigeria) Ltd, 191 F 3d 194 (2d Cir 1999); TermoRio SA ESP v Electranta SP, 487 F 3d 928 (DC Cir 2007). But an Egyptian award which had been set aside by the Egyptian court was enforced because the parties had agreed that the award would not be the subject of recourse to the local courts: Chromalloy Aeroservices v Arab Republic of Egypt, 939 F Supp 907 (DDC 1996). That decision was based both on the discretion in the New York Convention, article V(1) and on the power under article VII(1) (see Karaha Bodas Co v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F 3d 357, 367 (5th Cir 2003)) and whether it was correctly decided was left open in TermoRio SA ESP v Electranta SP, ante, at p 937. The power to enforce notwithstanding that the award has been set aside in the country of origin does not, of course, arise in this case. The only basis which Dallah puts forward for the exercise of discretion in its favour is the Governments failure to resort to the French court to set aside the award. But Moore Bick LJ was plainly right in the present case (at para 61) to say that the failure by the resisting party to take steps to challenge the jurisdiction of the tribunal in the courts of the seat would rarely, if ever, be a ground for exercising the discretion in enforcing an award made without jurisdiction. There is certainly no basis for exercising the discretion in this case. III The application of the principles to the appeal The crucial facts have been set out fully by Lord Mance. The essential question is whether the Government has proved that there was no common intention (applying the French law principles) that it should be bound by the arbitration agreement. The essential points which lead to the inevitable conclusion that there was no such common intention are these. First, throughout the transaction Dallah was advised by a leading firm of lawyers in Pakistan, Orr, Dignam & Co, which was responsible for the drafts of both the Memorandum of Understanding (MoU) which was concluded on 24 July 1995 between Dallah and the Government, and the Agreement of 10 September 1996 (the Agreement) between Dallah and the Trust. It must go without saying that the firm well understood the difference between an agreement with a State entity, on the one hand, and the State itself, on the other. Second, there was a clear change in the proposed transaction from an agreement with the State to an agreement with the Trust. The MoU was expressed to be made between Dallah and the President of the Islamic Republic of Pakistan through the Ministry of Religious Affairs, and it was signed For and on behalf of The President of the Islamic Republic of Pakistan. It was governed by Saudi Arabian law (clause 23). It provided for ad hoc arbitration with a Jeddah seat (clause 24), and contained an express waiver of sovereign immunity, including immunity from execution (clause 25). Third, the Trust was established as a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property, and may by its name, sue and be sued. Fourth, the Agreement (including the arbitration agreement) was plainly an agreement between Dallah and the Trust, and the Government was referred to in the Agreement only in its capacity of guarantor of loans to the Trust. It described the parties as Dallah Real Estate and Tourism Holding Company and Awami Hajj Trust. (which is referred to as having been: established under Section 3 of the Awami Hajj Trust Ordinance, 1996 (Ordinance No VII of 1996) On the signature page, there are two signatories: Dallah and the Awami Hajj Trust. Shezi Nackvi signed on behalf of Dallah, and Managing Trustee (Zubair Kidwai) signed on behalf of the Trust. Clause 2 provided for the Trust to pay $100m to Dallah by way of advance, subject to (inter alia) Dallah providing a Financing Facility against a guarantee of the Government of Pakistan and the Trust and the Trustee Bank providing a counter guarantee in favour of the Government of Pakistan. By clause 27 it was provided: The Trust may assign or transfer its rights and obligations under this Agreement to the Government of Pakistan without the prior consent in writing of Dallah. The arbitration clause (article 23) related to Any dispute or difference of any kind whatsoever between the Trust and Dallah . The parties amended the ICC model clause (which reads: All disputes arising out of or in connection with the present contract shall be finally settled), in order to specify the Trust and Dallah. Fifth, it was the Trust which immediately following the termination letter of 19 January 1997, commenced proceedings against Dallah in Islamabad (the 1997 Pakistan Proceedings). The proceedings were for a declaration that the Trust had validly accepted Dallahs repudiation of the Agreement between the Trust and Dallah on 19 January 1997. The contents of the pleading were verified on oath by Mr Muhammad Lutfullah Mufti. On the same day Mr Lutfullah Mufti made an application in the name of the Trust for an interim injunction restraining Dallah from holding itself out to have any contractual relationship with the Trust. On 6 March 1997 Dallah filed an application to stay the action, given the existence of an arbitration agreement with the Trust. The Trust took preliminary objections against this application, among which was that the Trust had challenged the validity and existence of the Agreement. Mr Lutfullah Mufti, describing himself as Secretary Board of Trustees Awami Hajj Trust/Secretary, Religious Affairs Division, Government of Pakistan swore an affidavit verifying the objections by the Trust to the application. There are only two serious contra indications. The first is the fact that the termination latter was written, after the Trust had ceased to exist, by Mr. Lutfullah Mufti (who had been Secretary of the Board of Trustees of the Trust and its Managing Trustee, and who was also from time to time Secretary of the Ministry of Religious Affairs) under the letterhead of the Ministry of Religious Affairs, and signed as Secretary. There is nothing in the text of the letter to suggest that it was written on behalf of the Government. On the contrary, as Moore Bick LJ said [2010] 2 WLR 805, para 36 (differing on this point from Aikens J, at para 117) all the internal indications are that it was written on behalf of the Trust. Thus the opening paragraph reads as follows: Pursuant to the above mentioned Agreement for the leasing of housing facilities in the holy city of Makkah, Kingdom of Saudi Arabia, you were required within ninety (90) days of the execution of the said Agreement to get the detailed specifications and drawings approved by the Trust. However, since you have failed to submit the specifications and drawings for the approval of the Trust to date you are in breach of a fundamental term of the Agreement which tantamounts to a repudiation of the whole Agreement which repudiation is hereby accepted. The second contra indication is contained in the fact that the 1998 Pakistan Proceedings were commenced in the name of the Government. That was because, when the 1997 Pakistan Proceedings were dismissed by the Pakistan court on the ground that the Trust had ceased to exist as of 11 December 1996, the judge said that, on dissolution of the Trust suit should have been filed by the Ministry for Religious Affairs, apparently on the basis that the Government had succeeded to the rights and obligations of the Trust. On 18 September 1998, the Islamabad judge ruled that the Government was not the legal successor of the Trust, and so not bound by the Agreement or the arbitration agreement. On 14 January 1999, the Government applied voluntarily to withdraw the suit, which was granted on the same day. Neither of these two matters, nor the other matters relied on, was sufficient to justify a finding of a common intention that the Government should be bound by the arbitration agreement. It is true that the principle of common intention in French law was similar to that articulated by the tribunal, but M Le Btonnier Vatiers evidence made clear that there were significant differences. He accepted that the principles adopted by the tribunal were in general the principles that might be adopted in French law, but they were too general. That is undoubtedly a valid criticism of the way in which the Tribunal sought to use material from the period prior to termination to justify its conclusion. The Tribunal first considered the conduct of the Government prior to the execution of the Agreement. It drew the conclusion that the organic control of the Government over the Trust, although insufficient to lead to the disregard of the separate legal entity of the Trust, constituted nevertheless an element of evidence as to the true intention of the Government to run and control directly and indirectly the activities of the Trust, and to view the Trust as one of its instruments. The Tribunal next considered the conduct of the Government at the time of execution of the Agreement. From that it drew the conclusion that the Government was contractually involved in the Agreement, as the Government was bound, under article 2 thereof, to give its guarantee for the financial facility to be raised by [Dallah] and that the Trusts right to assign its rights and obligations to the Government was a provision which was normally used only where the assignee is closely linked to the assignor or is under its total control through ownership, management or otherwise. The Tribunal considered that during the lifetime of the Agreement the Government continued itself to handle matters relating to the Agreement and to act and conduct itself in a way which confirmed that it regarded the Agreement as its own. Government officials were actively involved in the implementation of the Agreement. The Government decided not to re promulgate the Ordinance and therefore put an end to the Trust, and so the very existence of the Trust appeared to have been completely dependent on the Government. None of these matters could possibly justify a finding that there was a common intention that the Government should be bound by the arbitration agreement. The crucial finding was that after the dissolution of the Trust, the termination letter of 19 January 1997 was written on Ministry of Religious Affairs letterhead and signed by the Secretary of the Ministry, and confirmed in the clearest way possible that the Government regarded the Agreement with Dallah as its own and considered itself as a party to the Agreement and was entitled to exercise all rights and assume all responsibilities provided for under the Agreement. The signature of the letter could only be explained as evidence that the Government considered itself a party to the Agreement. But the Trust had no separate letterhead and it is plain from the surrounding circumstances, and particularly the way in which the 1997 Pakistan proceedings were commenced on behalf of the Trust, and verified by Mr Lutfullah Mufti, that the letter was written on behalf of the Trust and in ignorance of its dissolution. The tribunal ignored the 1997 Pakistan proceedings, and relied on the 1998 Pakistan proceedings to find that they showed that the Government considered itself as a party to the Agreement. But it is clear that those proceedings were commenced at the erroneous suggestion of the Pakistan judge and shed no light on whether the parties intended that the Government should be bound by the Agreement or the arbitration agreement. Consequently on a proper application of French law as mandated by the New York Convention and the 1996 Act there was no material sufficient to justify the tribunals conclusion that the Governments behaviour showed and proved that the Government had always been, and considered itself to be, a true party to the Agreement and therefore to the arbitration agreement. On the contrary, all of the material up to and including the termination letter shows that the common intention was that the parties were to be Dallah and the Trust. On the face of the Agreement the parties and the signatories were Dallah and the Trust. The Governments role was as guarantor, and beneficiary of a counter guarantee. The assignment clause showed that the Government was not a party. It permitted the Trust to assign or transfer its rights and obligations under the Agreement to the Government without the prior consent in writing of Dallah. The arbitration clause related to any dispute between the Trust and Dallah. The weakness of the conclusion of the tribunal is underlined by this passage in the Award: Certainly, many of the above mentioned factual elements, if isolated and taken into a fragmented way, may not be construed as sufficiently conclusive for the purpose of this section. However, Dr Mahmassani believes that when all the relevant factual elements are looked into globally as a whole, such elements constitute a comprehensive set of evidence that may be relied upon to conclude that the Defendant is a true party to the Agreement with the Claimant and therefore a proper party to the dispute that has arisen with the Claimant under the present arbitration proceedings. Whilst joining in this conclusion Dr Shah and Lord Mustill note that they do so with some hesitation, considering that the case lies very close to the line. Aikens J rejected the argument that the discretion should be exercised in favour of enforcement because of the Governments failure to challenge the award in the French courts: Dallah had not submitted that the Government was estopped from challenging the jurisdiction of the tribunal; and the discretion would not be exercised where, as in this case, there was something unsound in the fundamental structural integrity of the ICC arbitration proceedings, namely that the Government did not agree to be bound by the arbitration agreement in clause 23 of the Agreement. There was no error of principle and the Court of Appeal was right not to interfere with the judges exercise of discretion. LORD HOPE The essential question in this case, as Lord Mance and Lord Collins explain in paras 2 and 132 of their judgments, is whether the Government of Pakistan has proved that there was no common intention (applying French law principles) between it and Dallah that it should be bound by the arbitration agreement. This is a matter which goes to the root of the question whether there was jurisdiction to make the award. As such, it must be for the court to determine. It cannot be left to the determination of the arbitrators. For the reasons set out in the opinions of Lord Mance and Lord Collins, I agree that the facts point inevitably to the conclusion that there was no such common intention. As Lord Mance says in para 66, the agreement was deliberately structured to be, and was agreed, between Dallah and the Trust. I also agree that the Court of Appeal was right not to interfere with the judges exercise of his discretion to refuse enforcement of the award. I too would dismiss the appeal. LORD SAVILLE In his judgment Lord Mance has set out in detail the facts of this case and no purpose would be served by repeating them in this judgment. The case concerns an application by Dallah Real Estate and Tourism Holding Company to enforce in this country an ICC arbitration award dated 23rd June 2006 against the Ministry of Religious Affairs of the Government of Pakistan. The amount of the award was US$20,588,040. The application was opposed by the Ministry of Religious Affairs on the grounds that there was no arbitration agreement between the parties, so that the award was unenforceable. The award was a New York Convention Award within the meaning of Section 100 of the Arbitration Act 1996 and was made in Paris. Section 103(1) of the Arbitration Act 1996 provides that recognition and enforcement of a New York Convention Award shall not be refused except in the following cases. The following sub sections set out the cases in question. Section 103(2) contains a number of these cases and provides that recognition or enforcement of the award may be refused if the person against whom it is invoked proves (so far as the case relevant to these proceedings is concerned) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made.(Section 103(2) (b)) (emphases added). The arbitrators considered the question of their jurisdiction before dealing with the merits of the claim and concluded that the Ministry of Religious Affairs of the Government of Pakistan was party to an arbitration agreement with Dallah Real Estate and Tourism Holding Company, for the reasons contained in what they described as a Partial Award dated 26th June 2001. It was common ground that the question whether or not the Ministry of Religious Affairs was a party to the arbitration agreement relied upon by Dallah Real Estate and Tourism Holding Company, under which the ICC award was made, was to be determined under Section 103(2)(b) of the Arbitration Act 1996, and that the law to be applied was French law, being the law of the place where the award was made. After a trial, during which both parties tendered expert evidence on French law, Aikens J (as he then was) held that the Ministry of Religious Affairs was not party to the arbitration agreement and refused to enforce the award. The Court of Appeal upheld his decision. Dallah Real Estate and Tourism Holding Company now appeal to the Supreme Court. In their written case Dallah Real Estate and Tourism Holding Company submitted that the first issue for resolution by the Supreme Court concerned the nature and standard of review to be undertaken by an enforcing court when considering recognition and enforcement of a New York Convention award; and further submitted that the court should accord a high degree of deference and weight to the award of the arbitrators that there was an arbitration agreement between the parties. In the present case the arbitrators have made a ruling, as they were doubtless entitled to do under the doctrine of kompetenz kompetenz, that there was an arbitration agreement between the parties, so that they were able to hear and decide the merits of the case, which they then proceeded to do. However, under Section 103 of the Arbitration Act 1996 (as under the New York Convention itself) the person against whom the award was invoked has the right to seek to prove that there was no arbitration agreement between the parties, so that in fact the arbitrators had no power to make an award. The question at issue before the court, therefore, was whether the person challenging the enforcement of the award could prove there was no such agreement. In these circumstances, I am of the view that to take as the starting point the ruling made by the arbitrators and to give that ruling some special status is to beg the question at issue, for this approach necessarily assumes that the parties have, to some extent at least, agreed that the arbitrators have power to make a binding ruling that affects their rights and obligations; for without some such agreement such a ruling cannot have any status at all. As the Departmental Advisory Committee on Arbitration Law put it in paragraph 1.38 of its 1996 Report on the Arbitration Bill, an arbitral tribunal may rule on its own jurisdiction but cannot be the final arbiter of jurisdiction, for this would provide a classic case of pulling oneself up by ones own bootstraps. In my judgment therefore, the starting point cannot be a review of the decision of the arbitrators that there was an arbitration agreement between the parties. Indeed no question of a review arises at any stage. The starting point in this case must be an independent investigation by the court of the question whether the person challenging the enforcement of the award can prove that he was not a party to the arbitration agreement under which the award was made. The findings of fact made by the arbitrators and their view of the law can in no sense bind the court, though of course the court may find it useful to see how the arbitrators dealt with the question. Whether the arbitrators had jurisdiction is a matter that in enforcement proceedings the court must consider for itself. I accept, as an accurate summary of the legal position, the way it was put in the written case of the Ministry of Religious Affairs: Under s103(2)(b) of the 1996 Act / Art V.1(a) NYC, when the issue is initial consent to arbitration, the Court must determine for itself whether or not the objecting party actually consented. The objecting party has the burden of proof, which it may seek to discharge as it sees fit. In making its determination, the Court may have regard to the reasoning and findings of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them. In short, as was held in China Minmetals Materials Import and Export Co Ltd v Chi Mei Corporation (2003) 334 F3d 274, a decision of the United States Court of Appeals (3rd Circuit), the court must make an independent determination of the question whether there was an arbitration agreement between the parties. In the present case, for the reasons given by Lord Mance and Lord Collins (and the courts below), the Ministry of Religious Affairs has succeeded in showing that no arbitration agreement existed to which it was party and that there were no other grounds for enforcing the award. I would accordingly dismiss this appeal. LORD CLARKE I agree that this appeal should be dismissed for the reasons given by the other members of the court. Both Lord Mance and Lord Collins have analysed the relevant principles so fully and so expertly that it would be inappropriate self indulgence for me to attempt a detailed analysis of my own. |
This appeal raises a question relating to the temporal scope of Council Directive 97/81/EC of 15 December 1997, 1998 OJ L14/9, concerning the Framework Agreement on part time work (the directive) as extended to the United Kingdom by Council Directive 98/23/EC of 7 April 1998, 1998 OJ L131/10, and the general principles of EU law governing the non retroactivity of legislation. The question arises in the context of proceedings between Mr Dermod OBrien QC and the Ministry of Justice concerning the pension to which Mr OBrien is entitled by reason of his part time service in a judicial office. In essence, the question is whether, where a part time worker retires after the entry into force of the directive and is entitled under the directive, taken together with national law, to an occupational pension based on his length of service, periods of service which were completed before the directive entered into force should be taken into account. The facts The material facts are as follows. Mr OBrien is a retired self employed barrister who also held part time judicial office as a recorder (a part time judge of the Crown Court) between 1 March 1978 and 31 March 2005, when he retired at the age of 65. Recorders were not salaried but were paid fees on a per diem basis. There was no provision for the payment of a judicial pension on retirement. In June 2005 Mr OBrien wrote to the Ministry, requiring that he be paid a retirement pension on the same basis, adjusted pro rata temporis, as that paid to former full time judges who had been engaged on the same or similar work. He was informed by the Ministry that he fell outside the categories of judicial office holder to whom a judicial pension was payable. In September 2005 he began proceedings in the Employment Tribunal, in which he claimed that he was entitled to a judicial pension by virtue of the directive and the regulations transposing it into domestic law. On 28 July 2010 the Supreme Court referred two questions to the Court of Justice for a preliminary ruling under article 267 TFEU: (1) Is it for national law to determine whether or not judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the Framework Agreement, or is there a Community norm by which this matter must be determined? (2) If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the Framework Agreement, is it permissible for national law to discriminate (a) between full time and part time judges, or (b) between different kinds of part time judges in the provision of pensions? On 1 March 2012 the Second Chamber of the Court of Justice, having received the opinion of the Advocate General (Kokott) on 17 November 2011, gave judgment: OBrien (Case C 393/10) [2012] 2 CMLR 25. It answered the questions as follows: (1) European Union law must be interpreted as meaning that it is for the member states to define the concept of workers who have an employment contract or an employment relationship in clause 2.1 of the Framework Agreement and in particular, to determine whether judges fall within that concept, subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by Directive 97/81, as amended by Directive 98/23, and that agreement. An exclusion from that protection may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers. (2) The Framework Agreement . must be interpreted as meaning that it precludes, for the purpose of access to the retirement pension scheme, national law from establishing a distinction between full time judges and part time judges remunerated on a daily fee paid basis, unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine. Following that ruling, the Supreme Court held that Mr OBrien was at the material time a part time worker within the meaning of clause 2.1 of the Framework Agreement, and that no objective justification had been shown for departing from the principle of remunerating fee paid part time judges on the same basis as full time judges, subject to adjustment pro rata temporis. Mr OBrien was therefore entitled to a pension on terms equivalent to a circuit judge (a comparable full time judge): [2013] UKSC 6; [2013] 1 WLR 522. The case was remitted to the Employment Tribunal for determination of the amount of the pension to which Mr OBrien was entitled. The question which then arose was whether, in calculating the amount of his pension, account should be taken of the whole of his service since the beginning of his appointment on 1 March 1978 (a period of 27 years), or only his service since the deadline for transposing the directive expired (a period of less than five years). The Employment Tribunal held that the calculation should take into account the whole of his service, but the Employment Appeal Tribunal held the contrary: [2014] ICR 773. The Court of Appeal upheld the decision of the Employment Appeal Tribunal: [2015] EWCA Civ 1000; [2016] 1 CMLR 28. Mr OBrien now appeals to the Supreme Court. The legal context (a) National law Domestic legislation provides for the payment of judicial pensions under two statutes, the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993. The 1981 Act applies to persons appointed prior to 31 March 1995, unless they elect to have their pension paid under the 1993 Act. The 1993 Act applies to persons appointed on or after 31 March 1995. Under the Acts, a pension is payable to any person retiring from qualifying judicial office, subject to their having attained the age of 65 and, under the 1993 Act, subject also to their having completed at least five years service in such office. At the material time, full time judges and salaried part time judges held a qualifying judicial office, but fee paid part time judges, such as recorders, did not. Under both schemes, the amount of pension payable to a full time judge is based on his or her final years salary and on his or her number of years service in a qualifying judicial office by the date of retirement. Under the 1981 Act, circuit judges must have served for 15 years in order to qualify for a full pension of one half of their last annual salary. The corresponding period under the 1993 Act is 20 years. Under both schemes, judges who have served for shorter periods receive a proportion of the full pension corresponding to the length of their service. There is also a lump sum payable on retirement, the sum being based on the amount of the annual pension. Judicial pensions were at the material time non contributory. Since 2012, judges have had to pay a contribution. The United Kingdom gave effect to the directive by the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), which came into force on 1 July 2000. The Regulations provide that a part time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full time worker. In determining whether a part time worker has been treated less favourably than a comparable full time worker, the pro rata principle is to be applied unless it is inappropriate. The Regulations expressly do not apply to fee paid part time judges. (b) Relevant EU law In European Commission v Moravia Gas Storage AS (Case C 596/13 P) [2015] 3 CMLR 17, para 32, the Court of Justice stated: A new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application. The Court applied that principle in the context of the directive in Istituto Nazionale della Previdenza Sociale (INPS) v Bruno (Joined Cases C 395/08 and C 396/08) [2010] ECR I 5119, where the question arose whether service prior to the entry into force of the directive counted towards the service required to qualify for a retirement pension. The Court cited the principle that new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule (para 53), and concluded: Accordingly, the calculation of the period of service required to qualify for a retirement pension such as the pensions at issue in the main proceedings is governed by Directive 97/81, including periods of employment before the directive entered into force. (para 55) The Court cited that judgment when rejecting an objection to the admissibility of the first preliminary reference in the present proceedings. In OBrien (Case C 393/10) [2012] ICR 955, the Court stated: 24. The Latvian Government doubts whether the reference for a preliminary ruling is admissible. It is contrary to the principle of the protection of legitimate expectations and the principle of legal certainty to hold that Directive 97/81 may apply to facts which took place before the entry into force of that directive in the United Kingdom and which continued for a short time after its entry into force, even if the right to a retirement pension claimed by Mr OBrien arose after the expiry of the time limit for transposing Directive 97/81. 25. The Court has already declared, as regards the applicability ratione temporis of that directive that new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule. Thus the Court concluded that the calculation of the period of service required to qualify for a retirement pension is governed by Directive 97/81, including periods of employment before the directive entered into force (Joined Cases C 395/08 and C 396/08 Bruno [2010] ECR I 5119, paras 53 to 55). 26. Consequently, the reference for a preliminary ruling must be declared admissible. The Court has treated occupational pensions as a form of pay, the entitlement to which accrues over the length of the employees service. In Ten Oever v Stichting Bedrijfspensionenfonds voor her Glazenwassers en Schoonmaakbedrijf (Case C 109/91) [1993] ECR I 4879, the Court stated, in relation to its Barber v Guardian Royal Exchange Assurance Group judgment (Case C 262/88) [1990] ECR I 1889: 17. The Courts ruling took account of the fact that it is a characteristic of this form of pay [scil, benefits provided for by private occupational pension schemes] that there is a time lag between the accrual of entitlement to the pension, which occurs gradually throughout the employees working life, and its actual payment, which is deferred until a particular age. 19. Given the reasons explained in para 44 of the Barber judgment for limiting its effects in time, it must be made clear that equality of treatment in the matter of occupational pensions may be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of the Barber judgment . (c) Summary of arguments of parties The fundamental difference between the parties is as to whether Mr OBriens entitlement to a pension in respect of his service prior to 7 April 2000 (the final date for transposition of the directive) should be regarded as a legal situation which arose and became definitive under the law then in force, or should be regarded as one of the future effects of a legal situation which arose under the old law, to which the directive therefore applies. Mr OBrien argues that the reasoning in the Bruno and OBrien judgments implies that periods of employment before the directive entered into force are to be taken into account when applying the directive in situations which arise after it should have been transposed. In particular, they are relevant not only to qualification for a retirement pension (which the Ministry does not dispute), but also to the quantification of that pension, where its quantification is based on the employees length of service. The Ministry argue that since, following Ten Oever, a pension payable under an occupational pension scheme constitutes deferred pay for past work, and the workers entitlement to pension accrues at the time of the work for which it constitutes pay, it follows from the non retroactivity principle that the accrued right cannot be affected retrospectively by a change in the law. The entitlement is permanently fixed at the time when the right accrues, rather than being determined when the person retires and the pension becomes payable. On that basis, it is argued that Mr OBriens non entitlement to pension in respect of his first 22 years of service was definitively established before the directive entered into force. (d) The view of the national court The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part time workers when a retirement pension falls due for payment. The directive applies ratione temporis where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directives entry into force, the directive applies to the future effects of that situation. However, the Court of Justice has not as yet considered the argument that if, following the Ten Oever line of authority, an occupational pension is treated as deferred pay, the right to which is acquired at the time of the work to which the pay relates, then it follows from the general principle of non retroactivity that the directive does not alter or affect rights acquired (or, in Mr OBriens case, not acquired) before it was brought into force, there being no provision in the directive which overrides that general principle. Although the majority of the court are inclined to think that Ten Oever was concerned with the exceptional Barber limitation, which does not arise in the present context, the correct approach does not appear to the Supreme Court to be acte clair. The question referred Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part time worker, if they would be taken into account when calculating the pension of a comparable full time worker? The Supreme Court has therefore concluded that it is necessary to refer the following question to the Court of Justice: |
The interface between health and social care is a difficult and controversial policy area. In general, health care is provided or arranged by the National Health Service, and is free for all patients irrespective of means, while social care is provided or arranged by local authorities with means tested contributions from those clients who are deemed able to pay for some or all of it themselves. This case is not about the rights or wrongs of that general policy. This case is about who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders responsible for at least some of it? The issue happens to arise in relation to Wales, where the legislation has since changed, as has the legislation in England, but very similar issues arise under the legislation now in force. The issue is the correct interpretation and application of section 49 of the Health and Social Care Act 2001, which is headed Exclusion of nursing care from community care services: (1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority, in or in connection with the provision of any such services, to (a) provide for any person, or (b) arrange for any person to be provided with, nursing care by a registered nurse. (2) In this section nursing care by a registered nurse means any services provided by a registered nurse and involving (a) the provision of care, or the planning, supervision or delegation of the (b) provision of care, other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. (emphasis supplied) The social care funders contend that this means that the NHS, in the shape of the Local Health Boards, is required to fund the full cost of a registered nurses presence in a care home. This is in the context of regulation 18(3) of the Care Homes (Wales) Regulations 2002 (SI 2002/324), which requires that: Where the care home (a) provides nursing to service users; and (b) provides, whether or not in connection with nursing, medicines or medical treatment to service users, the registered person shall ensure that at all times a suitably qualified registered nurse is working at the care home. (emphasis supplied) The Local Health Boards, on the other hand, contend that the nurses time can be divided into a series of discrete tasks or functions, some of which do not need to be provided by a registered nurse, so that they are responsible for only a proportion of her time working in the home. How the dispute arose In practice, Local Health Boards pay for nurses time in social care homes by a weekly flat rate payment for each care home resident who qualifies for some nursing care. Between September and November 2013, every Local Health Board in Wales decided to set the rate at 128.61 per resident per week. This was an increase on what they had previously been paying. Their decisions took account of a report by healthcare consultants Laing & Buisson. Laing & Buisson conducted a survey which asked nurses to record and categorise the time they spent during a particular shift into: (a) direct nursing care time, (b) indirect nursing care time (eg management of medicines, overall care planning, and hygiene standards), (c) non nursing care time (eg social care including dressing and washing), and (d) other time (including stand by time, paid breaks and time spent receiving supervision). They commented that splitting nurses time and costs in such detail was always likely to prove challenging. If social care were excluded, homes might be inclined to minimise nurses participation in providing holistic and integrated nursing and social care support for residents. Would it not be a lot simpler, they asked, just for the NHS to pay for the full direct salary cost of registered nurses, rather than argue about the split between nursing and non nursing care? (NHS Wales Funded Nursing Care Review 2013, Laing & Buisson FNC Survey Report, pp 23, 26). The Health Boards decided that time in categories (c) and (d) did not fall within the definition of nursing care by a registered nurse in section 49(2) and therefore they would not fund it. This resulted in a weekly payment which was 27.33 lower than it would have been had that time been included. It has been estimated that the overall cost to the Health Boards in Wales if it were included would be between 7 and 13m a year. The decisions of the seven Local Health Boards, covering the whole of Wales, to set the flat rate at 128.61 (subsequently increased in accordance with an inflationary uplift mechanism which is not now disputed) were originally challenged by 11 owners and operators of care homes in Wales. All the local authorities in Wales were joined as interested parties. They (with the exception of the County Council of the City and County of Cardiff, which has taken no part in these proceedings) have effectively taken over the conduct of the case from the care home owners. The Welsh Ministers were also joined as interested parties but have taken no part in this appeal. The Secretary of State for Health, who is responsible for the NHS in England, has intervened in the appeal in support of the Local Health Boards. The care homes challenge, on the ground that too restrictive an interpretation of nursing care by a registered nurse had been adopted, succeeded before Hickinbottom J: [2015] EWHC 601 (Admin); [2015] PTSR 945. He rejected the Health Boards argument that it covered care which could only be provided by a registered nurse and accepted the challengers argument that it covered all the services in fact provided by a registered nurse. Hence he quashed the Health Boards decision. On appeal, the Health Boards conceded, as they had done below, that they had been wrong to exclude the nurses stand by time (part of (d) in para 6 above) from their calculations. Subject to that, the Court of Appeal, by a majority, allowed their appeal: [2016] EWCA Civ 26; [2016] PTSR 908. Laws LJ gave the leading judgment. He held that the Judges construction gave insufficient weight to the excepting words at the end of section 49(2). These clearly distinguished between different services provided by a nurse at a care home. It did not follow from the fact that a nurse needed to be on call at all times that everything she did while on duty was a service which needed to be provided by a registered nurse. Whether what she did fell within the definition was a factual rather than a legal question. Elias LJ agreed that section 49(2) envisaged that there would be some services provided by a registered nurse which would not fall within the concept of nursing care by a registered nurse. But it followed from the requirement to have a nurse or nurses in attendance at all times that the Health Boards had to pay for all the arrangements necessary to secure this, so not only stand by time, but also meal breaks, supervision and administrative tasks associated with it. But if the costs were increased because she also provided social care that was not a service for which the Health Boards should pay. Lloyd Jones LJ agreed with Laws LJ. Distinguishing between the services provided by the nurse inevitably involved what had been referred to as a task based approach apportioning her time according to how she spent it. He also agreed that it did not follow from the fact that a nurse had to be there at all times that everything she did while there was the responsibility of the Health Boards. The approach adopted by Elias LJ was inconsistent with the agreed requirement to distinguish between different categories of services. The local authorities now appeal to this Court. The statutory context The powers and duties of local authorities in relation to what is now called social care were contained in a series of enactments which have now been replaced, in Wales, by the Social Services and Well being (Wales) Act 2014 and, in England, by the Care Act 2014. At the relevant time, section 47 of the National Health Service and Community Care Act 1990 required a local authority, where it appeared that a person for whom they were responsible might be in need of community care services, to carry out an assessment of his need for those services and decide whether his needs called for them to provide such services. Community care services were defined in section 46 of the 1990 Act as services which a local authority might provide or arrange under a number of enactments, including Part III of the National Assistance Act 1948. Part III of the 1948 Act included section 21(1)(a), under which local authorities could provide or arrange residential accommodation for adults who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them, in other words care homes. This was a duty owed to people ordinarily resident in their area and other persons in urgent need (Local Authority Circular LAC (93)10). By section 21(5), accommodation included board and other services, amenities and requisites provided in connection with the accommodation. However, section 21(8) provided that: Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006. By section 3(1) of the National Health Service (Wales) 2006 Act (which is in substantially the same terms as its predecessors in the National Health Service Acts of 1946 and 1977): The Welsh Ministers must provide throughout Wales, to such extent as they consider necessary to meet all reasonable requirements (a) hospital accommodation, (b) other accommodation for the purpose of any service provided under this Act, (c) medical, dental, ophthalmic, nursing and ambulance services, such other services or facilities for the prevention (e) of illness, the care of persons suffering from illness and the after care of persons who have suffered from illness as they consider are appropriate as part of the health service, such other services or facilities as are required for (f) the diagnosis and treatment of illness. Under section 12, the Welsh Ministers may direct the Local Health Boards established under section 11 to exercise these functions. The effect of the directions current at the relevant time (the National Health Service (Nursing Care in Residential Accommodation) (Wales) Directions 2004) was that Local Health Boards were obliged to provide nursing care for those who required it, including those accommodated in care homes by local authorities. In practice, there are three categories of resident in care homes: (1) A resident who has a primary need for health care. Local Health Boards fund the whole of her care, both nursing and non nursing, and her accommodation. This is known as Continuing Health Care. (2) A resident who requires some health care but for whom this is not a primary need. Local Health Boards fund the nursing care which she needs, known as Funded Nursing Care, while the resident herself, or the local authority, or both, fund the rest of her care and accommodation. (3) A resident who requires no nursing care. The whole of her care and accommodation will be funded by the resident, or by the local authority, or by both. This case is concerned with the funding of nursing care for residents in category (2). The extent to which a local authority is neither allowed nor required to fund such care is governed by section 49 of the 2001 Act (subsequently replaced by section 47 of the 2014 Act, section 47(10) of which defines nursing care by a registered nurse in almost identical terms to section 49(2)). The case has been argued throughout on the basis that, if a local authority is not permitted to fund such care, then the Local Health Boards are required, under section 3(1) of the 2006 Act, to do so: there will be no funding gap. Part of the background to the enactment of section 49 is the decision of the Court of Appeal in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 (upholding the decision of the first instance Judge). The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were in need of only general rather than specialist nursing services and that these should be purchased by the local authority rather than provided by the NHS. So the health authority decided to close the home and transfer their long term care to the local authority. The case is generally known for holding that to close the home would be an unjustified breach of the legitimate expectations engendered by the health authoritys promise and thus an abuse of power. But it is also important for its discussion of when nursing care could, and could not, be provided by local authorities in residential accommodation which they provided or arranged under section 21 of the 1948 Act. On the one hand, section 21(5) included in the provision of accommodation board and other services, amenities and requisites provided in connection with the accommodation. This could obviously include nursing care for those residents who needed it. On the other hand, section 21(8) excluded anything authorised or required to be provided under the National Health Service Act 1977. The court held that this was limited to those health services which, in fact, have been authorised or required to be provided under the 1977 Act. It did not include services which the Secretary of State [had] legitimately decided under section 3(1) of the 1977 Act it was not necessary for the NHS to provide (per Lord Woolf MR, at para 29). There was no precise dividing line between those nursing services which are and those which are not capable of being treated as included in the package of care provided by the local authority (para 30(d)). But it could not be based solely on whether the nursing care was general or specialist. The distinction was one of degree which would depend upon the facts of the individual case: However, as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. (para 30(e)) The court acknowledged Mr Gordons submission, on behalf of the claimant, that this was unfair: if a person received comparable nursing services in a hospital or at home, they would be free of charge. But that unfairness was part of the statutory scheme (para 30(c)). However, the NHS eligibility criteria could not place responsibility on a local authority which went beyond what section 21 permitted. These patients health care needs went far beyond that. Hence the closure decision was unlawful. But the matter did not rest there. The other part of the background to section 49 of the 2001 Act is the Report of the Royal Commission on Long Term Care (chaired by Sir Stewart Sutherland), With Respect to Old Age: Long Term Care Rights and Responsibilities (Cm 4192 I), published in March 1999 between the first instance and Court of Appeal judgments in the Coughlan case. This made two main recommendations. The first was that all nursing care, wherever it was delivered, should be free and funded by the NHS (recommendation 6.3 (para 6.26)). The current situation was not justified or defensible. By nursing care was meant care which involves the knowledge or skills of a qualified nurse (para 6.22). The second was that all personal care should also be free of charge and funded from general taxation (recommendation 6.4 (para 6.37)). By personal care was meant care which involves touching a persons body. It falls within the internationally recognised definition of nursing but may be delivered by many people who are not nurses (para 6.43). A long list of such tasks was provided (para 6.44). There was a Note of Dissent by Joel Joffe and David Lipsey. They agreed that the position on nursing care was a glaring anomaly and that it should be free and funded by the NHS wherever it was provided. But they defined it strictly as that care which requires the specific knowledge and skills which only a registered nurse can provide and then gave examples (para 65). Further, the dissenters could not go along with the central recommendation of the majority that personal care should be provided free of charge (para 1). This would cost a great deal of money while doing nothing to increase the funds actually devoted to personal care or to improve the quality of services provided. The Government published its response in July 2000, The NHS Plan: The Governments response to the Royal Commission on Long Term Care (Cm 4818 II). This rejected the recommendation on personal care, believing it not to be the best use of resources. But it accepted the recommendation on nursing care (para 2.5). This would require primary legislation, which would be introduced as soon as possible, with a view to introducing free NHS nursing care in all nursing homes by October 2001 (para 2.8). Crucially: 2.9 In the future, the NHS will meet the costs of registered nurse time spent on providing, delegating or supervising care in any setting. This is a wider definition of nursing care than proposed in the Note of Dissent to the Royal Commission report, which suggested it should include those tasks that only a registered nurse could undertake. 2.10 Therefore people identified as needing nursing home care will no longer have to meet any of the costs for the registered nurses involved in their care, or for the specialist equipment used by those nurses. Instead the NHS will meet these costs. (emphasis supplied). Section 49 was enacted as a result. The Explanatory Notes to the 2001 Act confirm this: 240. Section 49 removes local authorities functions to purchase nursing care by a registered nurse. 241. Subsection (1) removes the right of a local authority to provide or arrange nursing care by a registered nurse. It is intended that the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care by a registered nurse and such care will (in accordance with the 1977 Act) be free of charge. 242. Subsection (2) defines nursing care by a registered nurse as services provided by a registered nurse and involving either the provision of care or the planning, supervision or delegation of the provision of care, other than services which do not need to be provided by a registered nurse. In deciding whether services need to be provided by a registered nurse, it is necessary to have regard to the nature of those services and the circumstances in which they are provided. We have been referred to various ministerial statements made during the Parliamentary debates on the 2001 Bill, but I do not regard those statements as sufficiently clear and unequivocal to meet the stringent tests of admissibility laid down in Pepper v Hart [1993] AC 593 and R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349. It is one thing for the Minister to say that a nurse is not defined by the tasks that he or she performs (Hansard, Standing Committee E, 6 February 2001, col 442); it is quite another thing to say that there is no limit to the work done by a registered nurse in a care home for which the NHS must pay. We are, however, entitled to take into account the preceding reports and explanatory notes to identify the mischief at which the legislation was aimed and the proposed solution to it. The issue and the arguments There is no doubt that the mischief at which section 49 was aimed was the glaring anomaly that nursing care was either provided free by the NHS or bought in by the local authority or residents depending on where it was provided. It was clearly intended to shift the boundary established by the Coughlan decision further in the direction of NHS funding. But the question remains whether nursing care by a registered nurse covers everything that is done by a registered nurse in a care home, as it would in a hospital or other health service setting or (probably) in the patients own home, as the appellant local authorities contend, or whether it covers only some of what she does, as the Health Boards contend. This turns on the meaning and purpose of the concluding words in section 49(2): other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. Had those words not been there, there is no doubt that the local authorities interpretation would be correct and the NHS would have to pay for all the time spent by a registered nurse in a care home providing, planning, supervising or delegating care of any sort, at least for those residents whose needs were the reason for her presence. So the question is: why are those words there and what do they mean? There are no other decided cases which have discussed this question, perhaps surprisingly, given how important it is, not only to the Health Boards and local authorities in Wales, but also to thousands of care home residents who fund or contribute to the funding of their own care, as well as to those in England where the legislation is in similar terms. Section 49 is referred to in two cases, R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 (Admin); [2006] LGR 491) and R (St Helens Borough Council v Manchester Primary Care Trust [2008] EWCA Civ 931; [2009] PTSR 105, but in both cases the issue was the criteria for deciding whether an individual qualified for continuing NHS care (category (1) residents in para 17 earlier), with the consequence that the NHS was responsible for all their care costs, or whether they fell within the scheme under discussion here, in which case those costs might be shared. There was no detailed discussion of how those costs are to be shared, which is the issue in this case. Much of the oral argument in this court focussed upon the consequences of the requirement in regulation 18(3) of the Care Homes (Wales) Regulations 2002, that if a home (a) provides nursing to service users; and (b) provides whether or not in connection with nursing, medicines or medical treatment to service users a suitably qualified registered nurse must be working there at all times. This means that in such homes there must always be a registered nurse on duty, even if she is doing nothing. This would in practice be the case even without regulation 18(3), because, as was the evidence at first instance, if a home has residents who need nursing care they [will] need to be cared for in an environment where a registered nurse is available on a 24 hour basis. This will usually be because of the complexity, intensity or unpredictability of their needs (First Witness Statement of Victoria Warner, para 8). The Local Health Boards therefore accepted before the judge that time spent on stand by should have been included in the time for which they should pay. Mr Gordon, for the local authorities, argues that this means that they should pay for all the time that the nurse is there. She has to be there all the time and therefore all the services which she is providing while she is there need to be provided by her. Thus, the argument goes, even if the Health Boards are in principle correct to divide up the nurses time according to what she is doing, in practice whatever she is doing needs to be done by her because she has to be there. This approach, it is argued, does not ignore the closing words of section 49(2) for two reasons. First, the NHS does not have to pay for roles which happen to be done by a registered nurse but could just as well be done by someone else. In many homes, for example, the manager is a registered nurse, but the managers role does not need to be performed by a registered nurse. This argument does accept that nursing care by a registered nurse is defined by the sort of work the nurse is doing rather than by her formal qualifications. But defining her role is different from parcelling up her time in the manner put forward by the Health Boards. Against this, the Health Boards argue that the NHS is already protected by section 49 from having to pay for registered nurses doing something other than providing, arranging or supervising care. But it cannot have been intended that it should have to pay the full costs of employing a manager if she is also fulfilling the on call requirement. The second reason for suggesting that the local authorities approach does not ignore the closing words is that the NHS does not have to pay for over staffing. If the home only needs there to be one nurse on duty at all times, then the services provided by other nurses do not need to be provided by a registered nurse. Against this, the Health Boards argue that even if there are more nurses than required, the NHS still has to pay for that part of their work which does need to be done by a registered nurse. Overall, the Health Boards and the Secretary of State argue that the Governments policy decision was that personal care should be provided or arranged by local authorities and subject to means tested charges. It would be contrary to that policy to oblige the NHS to pay the costs of personal care which happened to be provided by a registered nurse and absurd to make it pay the cost of a registered nurse on stand by fulfilling some completely different role. Their interpretation encourages efficiency: homes should arrange their business so that nurses spend as much time as possible on nursing care, but when they are not, their time should be used productively on personal care rather than standing idle. Dividing up the nurses time between nursing and non nursing tasks is the only way to make sense of section 49 as a whole, including the closing words. Discussion The parties in this appeal have adopted diametrically opposed positions. The Health Boards and Secretary of State argue that the consistent view of the case law has been to respect the decisions of the NHS as to what services are necessary to meet all reasonable requirements, under section 3(1) of the 2006 Act, subject only to challenge on the usual judicial review grounds. Thus, it is said, there is nothing unusual in the NHS defining the limits of its responsibilities for itself. The proper construction of section 49(2) depends upon what the NHS decides is reasonably required. Against this, it is true that the courts have normally respected those decisions, subject only to challenges on conventional judicial review grounds; but in this case the NHS is arguing that it should be free to define the extent of the responsibilities of others, the local authorities or residents, by deciding for itself what is and what is not a nursing task, because all are agreed that there should be no funding gap between what is funded by the NHS and what is funded by local authorities with means tested contributions from the clients. The limits of the local authorities responsibilities are defined by Parliament in section 49. If Parliament had wanted to leave the division of responsibility in the hands of the NHS, it could and would have left the Coughlan decision undisturbed. On the other hand, the local authorities primary argument before this Court was that the court should focus on the application rather than the interpretation of section 49. If it is accepted that the NHS must fund the presence of a nurse who is there to fulfil the legal or practical requirement that a nurse must be on duty at all times, then it follows that the NHS must fund everything that that nurse does while on call in this way. This cannot be correct. The task of this court is to interpret the meaning of the words used by Parliament to impose a restriction on what local authorities may provide or arrange and thus indirectly to impose an obligation on the NHS to fund what the local authorities cannot provide or arrange. Interpretation must come before application. Once interpreted, it is for those on the ground to put that interpretation into practice. Before turning to that task, it is worth bearing in mind that the current practice does not in fact reflect the logic of the Health Boards interpretation. Their task based approach would logically require an individualised assessment of what is in fact done by each registered nurse working in a care home and dividing it into nursing and non nursing tasks. Instead, the Health Boards have relied on a survey to produce an average result and thus a flat rate contribution across the board. Furthermore, it appears that this is only done in relation to nurses time in care homes. Section 49 applies to all kinds of community care services, including services in the clients own homes, but we have no evidence of a similar apportionment being made in relation to home nursing services. Nor, of course, does it take place in hospital, where nurses may well spend time doing other tasks than those which the NHS argues are covered by section 49. The courts below accepted that this was the only practical solution to the problem but it is not necessarily logical. I start from the proposition that, in passing the 2001 Act, Parliament did not intend to leave the division of responsibility in the hands of the NHS. It clearly intended to provide a test, but a different test from that in section 21(8) of the 1948 Act (para 15 above). It must also have intended to depart from the position established in Coughlan, which depended upon the test in section 21(8). In construing the test in section 49(2), I bear in mind that, if Parliament had wanted to restrict the definition of nursing care by a registered nurse to tasks which can only be performed by a registered nurse, it both could and would have said so. It did not. The Governments response to the Royal Commission report clearly envisaged a wider test than that put forward by the dissenters to that report. On the other hand, if Parliament had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it both could and would have said so. It did not. It began with the broad concept of any services provided by a registered nurse but then limited those services in two ways. First, they must be services involving the provision, planning, supervision or delegation of care. So they are limited to services which have to do with the care of residents, that is, with looking after them. However, they are not limited to nursing services or nursing care. They could involve any form of care, nursing, personal or social. Secondly, however, services which having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse are excluded. This clearly envisages that there will be circumstances in which some personal or non nursing care will need to be provided by a registered nurse. Care which is associated with or ancillary to the nursing care which she is providing obviously needs to be provided by her. When a registered nurse is engaged in providing nursing care, it makes no sense to say that she does not need to do the other things that the resident needs to have done while she is providing the nursing care. For example, there may be a reason why a nurse needs to take a patient to the lavatory. The tasks associated with taking a resident to the lavatory cannot be parcelled up between two carers in this way. Whoever is doing them needs to do them all. That applies to all sorts of caring tasks which a nurse needs to do for some reason and which cannot sensibly be parcelled up between nursing and non nursing tasks. One service which a nurse undoubtedly has to do is to provide, as the Laing and Buisson report puts it, an overall, holistic, person centred plan for each resident who needs some nursing care (p 6). In the course of doing this, she may very well have to engage in social and personal care tasks in order to understand the overall needs of the resident and provide an appropriate care plan to meet them. We are, by definition, looking at the funding of the care of residents who, although health care is not a primary need do have a need for some nursing care. That has to be provided by a registered nurse. Other kinds of care which are ancillary to or associated with the nursing care which these residents need does also have to be provided by a registered nurse. Any other approach is contrary to the holistic view which is now taken of looking after the whole person. It is a matter of fact what part of the care provided by registered nurses to residents who have a need for some nursing will fall within this definition; it may or may not be a substantial part of their care; but that is a matter for the decision makers and not for us. I would also accept the view that time spent on paid breaks falls within the definition of nursing care by a registered nurse. Part of providing their caring services is taking the breaks necessary to be able to provide those services properly. The same applies to time spent receiving supervision, which is also a necessary part of providing the caring services they are there to provide. This construction is close, but not identical, to the third argument put forward in the local authorities case. Their first and second arguments, as we have seen, were that the NHS should pay for everything done by a registered nurse whose presence was required in a care home and her time should not be atomised into different tasks. Their third argument was that time spent providing personal or social care, on paid breaks, or receiving supervision, should be included. The respondents argue that they should not be allowed to advance it. However, having rejected both parties primary arguments, it is our task to try to discern the true meaning of the legislation. As the legislation quite clearly envisages that there will be some circumstances in which care does need to be provided by a registered nurse, even though it is not care which only a registered nurse can provide, in my view it is our duty to say so. In my view, therefore, nursing care by a registered nurse covers (a) time spent on nursing care, in the sense of care which can only be provided by a registered nurse, including both direct and indirect nursing time as defined by the Laing and Buisson study; (b) paid breaks; (c) time receiving supervision; (d) stand by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide. In other words, the concentration in this case on the division between nursing and personal care has been a distraction. There is some personal care which, in all the circumstances, does need to be performed by a registered nurse, but there is some which does not. I agree with Laws LJ that this is a question of fact, although the only practical solution is to make a rough and ready calculation based on the generality of what takes place. Hence I also agree with Laws LJ and Lloyd Jones LJ that some differentiation between the care services provided is required. But I would draw the dividing line in a different place from them. It seems to me plain that Parliament envisaged that some care services would be included beyond those which could only be provided by a registered nurse: hence the addition of category (e) above to the list. Decision It follows from this, and from the earlier concession that stand by time should have been included, that the Health Boards decisions were based on a misinterpretation of section 49(2) and must be quashed and re taken in the light of the guidance given in para 44 of this judgment. Ideally, this should be a matter for negotiation between all the parties who are governed by the legislation and have an interest in the outcome. |
On 18 January 2005, at about 2.20 am, a tragic incident occurred on the A282 north of the Dartford River Crossing. The A282 is a six lane carriageway which links the Dartford Crossing bridge and tunnel with the M25 motorway. The respondent, Mr Gareth Jones, was driving a Highways Agency gritter along the nearside carriageway. Slightly ahead of him, in the central lane of the north bound carriageway, was an articulated lorry driven by Mr Brian Nash. Ahead of him there was a car which was parked on the hard shoulder of the carriageway. As Mr Nashs lorry approached it a man ran from near the car into the middle of the central lane, turned towards the lorry, stood in its path and raised his arms. Mr Nash braked, but he was unable to avoid hitting the man, who was killed instantly. As a result of the braking the rear nearside corner of the articulated lorry swerved into the path of the gritter vehicle. There was a collision between the two vehicles, as a result of which the cab of the gritter was destroyed and Mr Jones was thrown from it onto the roadway. He suffered very severe injuries and now requires full time care. The man who ran onto the carriageway was Mr Barry Hughes. The inquest into his death returned an open verdict. But the obvious inference from his actions was that his intention was to kill himself. On 17 May 2007, acting by his mother Mrs Maureen Caldwell, Mr Jones applied to the Criminal Injuries Compensation Authority (the CICA) for an award of compensation under the Criminal Injuries Compensation Scheme 2001 (the Scheme). On 6 March 2008 he was informed by the CICA that it was unable to make an award under the Scheme. The reason that was given for this decision was that the Scheme provided that compensation was payable only if the claimant was the victim of a criminal injury. The CICA had obtained details of the incident from the police and the doctors who provided treatment, but it had been unable to pinpoint a crime of violence of which Mr Jones was a victim which would have enabled an award to be made. Mr Jones then appealed to the First tier Tribunal (the FTT). Suicide is no longer a criminal act. So it was contended on his behalf that Mr Hughes had committed two criminal offences: (i) intentionally and unlawfully interfering with a motor vehicle, contrary to section 22A of the Road Traffic Act 1988 (as inserted by section 6 of the Road Traffic Act 1991), and (ii) inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. On 8 May 2009 the FTT held that it was not open to it to make a full or a reduced award. It was not satisfied that an offence under section 22A had been committed. Nor was it satisfied that any such offence would amount to a crime of violence within the meaning of the Scheme rules: para 39. That conclusion is no longer being challenged, and it is unnecessary to say anything more about it. But the FTT also rejected the claim based on section 20 of the 1861 Act, as it was not satisfied that Mr Hughes intended to cause harm, or was reckless as to whether harm of whatever degree might be caused by his actions, when he ran out into the carriageway: para 38. Mr Jones applied to the Upper Tribunal (Administrative Appeals Chamber) for relief by way of judicial review of the FTTs decision under section 15 of the Tribunals, Courts and Enforcement Act 2007. On 11 June 2010 the Upper Tribunal (Nicol J, Judge Sycamore and Upper Tribunal Judge Mesher) dismissed the application: [2010] UKUT 199, [2011] RTR 55. It accepted that the mens rea for an offence under section 20 of the 1861 Act was that the defendant either intended or foresaw that his act would cause harm to some person: R v Parmenter [1992] 1 AC 699, 752 per Lord Ackner. It noted that the FTT had held that there was no evidence that Mr Hughes deliberately intended to harm the users of the road. This left the question whether he was reckless, in the sense that he actually foresaw that his actions might cause physical harm of whatever degree to other road users: para 37. It held that the FTT had properly directed itself to the question it had to consider, and that its finding that Mr Hughes was not reckless was one to which a rational tribunal could have come: para 39. The Upper Tribunal refused permission to appeal to the Court of Appeal, but on 25 August 2010 Mr Jones sought and was granted permission to appeal to the Court of Appeal under section 13 of the 2007 Act. On 12 April 2011 the Court of Appeal (Mummery, Rix and Patten LJJ) [2012] QB 345 allowed the appeal and granted judicial review of the FTTs decision. It remitted the matter to a differently constituted FTT to reconsider the issue of recklessness in the light of the reasons given in the courts judgment. The CICA now appeals against that decision to this court. The Scheme The Scheme was made under section 1 of the Criminal Injuries Compensation Act 1995. That Act was enacted to establish a scheme for compensation for criminal injuries in place of the non statutory system which had been in existence since 1964 following the publication of the White Paper Compensation for Victims of Crimes of Violence (1964) (Cmnd 2323). In para 13 of the White Paper it was acknowledged that personal injury might arise from a great variety of offences and it refrained from specifying a comprehensive list of crimes whose victims might apply for compensation. The 1964 Scheme did not set out a list of that kind either. But revisions to the 1964 Scheme in 1969 introduced into it the words crime of violence for the first time. As amended, the 1964 Scheme provided for applications for compensation in circumstances where the applicant had sustained personal injury directly attributable to a crime of violence (including arson and poisoning). The same wording was used when a new scheme was introduced in 1979. That scheme has now been replaced by the Criminal Injuries Compensation Scheme which was introduced by the CICA on 27 November 2012. The first statutory scheme was made in 1996. It was followed by the Scheme which was made on 1 April 2001 and is the relevant scheme for the purposes of this case: see para 3, above. Paragraph 6 of the Scheme provided that compensation might be paid in accordance with it to an applicant who had sustained a criminal injury on or after 1 August 1964. In paragraph 8 it was stated: For the purposes of this Scheme, criminal injury means one or more personal injuries as described in the following paragraph, being an injury sustained in Great Britain and directly attributable to: (a) a crime of violence (including arson, fire raising or an act of poisoning); or (b) an offence of trespass on a railway; or (c) the apprehension or attempted apprehension of an offender or a suspected offender, the prevention or attempted prevention of an offence, or the giving of help to any constable who is engaged in any such activity. The expression personal injury is stated in paragraph 9 to include physical injury, mental injury and disease. Section 20 of the 1861 Act inflicting bodily injury, with or without weapon. It is in these terms: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and Section 20 of the Offences against the Person Act 1861 is entitled being convicted thereof shall be liable to be kept in penal servitude. In R v Mowatt [1968] 1 QB 421, 425 Diplock LJ observed that the expression unlawfully and maliciously was a fashionable phrase of the Parliamentary draftsman in 1861. It is plain that it is not to be taken to have been used here in the old, rather vague, sense of wickedness. A more precise appreciation as to the test it lays down is required. In R v Cunningham [1957] 2 QB 396 the Court of Criminal Appeal approved of the principle which had been propounded by Professor C S Kenny in the first edition of his Outlines of Criminal Law (1902) and had been repeated in the 16th edition (1952), p 186, that any statutory definition of a crime must be taken to require either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (in other words, that the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). That formulation was disapproved in part in R v Mowatt. Diplock LJ said at p 426 that the word maliciously does import on the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. But it was unnecessary that he should have foreseen that his unlawful act might cause physical harm of the gravity described in the section: It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. His description of the principle was approved and applied by the House of Lords in R v Savage; DPP v Parmenter [1992] 1 AC 699: see Lord Ackner at p 752. Mustill LJ said in the Court of Appeal in that case at p 706 that the judgment in R v Mowatt laid down two propositions, one positive and one negative: The positive proposition was that to found a conviction under section 20 it must be proved that the defendant actually foresaw that physical harm to some other person would be the consequence of his act. This is subject to the negative qualification, that the defendant need not actually have foreseen that the harm would be as grave as that which in the event occurred. It was pointed out that the words should have foreseen in Mowatt were intended to bear the same meaning as did foresee or simply foresaw. Crime of violence Various attempts have been made to define what is meant by the phrase a crime of violence for the purposes of the schemes for compensation for criminal injury. Different views were expressed in R v Criminal Injuries Compensation Board, Ex p Clowes [1977] 1 WLR 1353. Eveleigh J said at p 1359 that it referred to that kind of deliberate criminal activity in which anyone would say that the probability of injury was obvious. Wien J said at p 1362 that it meant some crime which as applied to the facts of a case involved the possibility of violence to another person. Lord Widgery CJ said at p 1364 that it was a crime which was accompanied by or concerned with violence. He described counsel for the boards submission that a crime of violence should mean a crime of which violence is an essential ingredient as a very neat and tidy package in which to put the problem. In R v Criminal Injuries Compensation Board, Ex p Webb [1986] QB 184 the Divisional Court (Watkins LJ, Lloyd and Nolan JJ) preferred Lord Widgerys approach. Having asked itself at p 193 why these ordinary English words should not be given their ordinary English meaning, it endorsed at p 195 a submission by counsel for the board which was similar to that made by counsel for the board in Clowes: A crime of violence is, he submits, one where the definition of the crime itself involves either direct infliction of force on the victim, or at least a hostile act directed towards the victim or class of victims. We think that this comes near enough to the ordinary meaning of the words as generally understood. That was a case where the board had rejected applications by four train drivers who suffered from anxiety and depression after their trains struck and killed four people, three of whom had deliberately committed suicide. Their applications were rejected because the board had concluded that their injuries did not result from a crime of violence within the meaning of the scheme. The Divisional Court held that the board had been right to refuse the applications. An appeal against its decision was dismissed by the Court of Appeal (Lawton and Stephen Brown LJJ, Sir John Megaw): [1987] QB 74. But, differing from the submission in Clowes which was endorsed by the Divisional Court, Lawton LJ said at p 79 that what mattered was the nature of the crime, not its likely consequences: It is for the board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence. He added this further guidance as to the approach that should be adopted: Most crimes of violence will involve the infliction or threat of force, but some may not. I do not think it prudent to attempt a definition of words of ordinary usage in English which the board, as a fact finding body, have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences Subsequent to that decision provision was made in the 1995 Scheme for compensation to be paid in respect of injuries directly attributable to an offence of trespass on the railway. The same point, that the board had to look at the nature of the crime and not at its results, was made by Lord Macfadyen in C, Petitioner 1999 SC 551, where he dismissed a petition for judicial review of the boards decision to refuse compensation for personal injury attributable to incidents of indecent exposure. At p 557 he said that there was a valid distinction between the criminal act and its consequences: The question whether a criminal act constitutes a crime of violence is to be answered primarily by looking at what was done rather than at the consequences of what was done. As Lawton LJ pointed out in Webb, Most crimes of violence will involve the infliction or threat of force but some may not. It may be that there are cases in which examination of the actual or probable consequences of the criminal act will cast light on its nature. But it is for the light that they cast on the nature of the criminal act rather than for their own sake that the consequences may be relevant. In R (August) v Criminal Injuries Compensation Appeals Panel [2001] QB 774 the Court of Appeal (Pill and Buxton LJJ and Sir Anthony Evans) also followed what Lawton LJ said in Webb. Buxton LJ said in para 19 that it was the leading authority on the construction of crime of violence, and that the court had not been shown any material derogating from the guidance given in that case. Nor have we, and I too would endorse the way Lawton LJ described the approach that should be taken. In August, para 21, Buxton LJ said that he accepted counsels submission that the issue for the panel of whether a crime of violence has taken place is a jury question. It would, I think, be more accurate to say that it is for the tribunal which decides the case to consider whether the words a crime of violence do or do not apply to the facts which have been proved. Built into that phrase, there are two questions that the tribunal must consider. The first is whether, having regard to the facts which have been proved, a criminal offence has been committed. The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence. I agree with Lord Carnwath for all the reasons he gives that it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals. The question whether a criminal offence has been committed is a question for the tribunal, having informed itself as to what the law requires for proof of that offence, to determine as a matter of fact. The question whether the nature of the criminal act amounted to a crime of violence may or may not raise an issue of fact for the tribunal to determine. This will depend on what the law requires for proof of the offence. For example, some of the common law crimes known to the law of Scotland are quite loosely defined. The range of acts that fall within the broad definition may vary quite widely, so the question whether there was a crime of violence will have to be determined by looking at the nature of what was done. But in this case the words of the statute admit of only one answer. They speak for themselves. To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person will be the consequence of his act, is a crime in terms of section 20 of the 1861 Act. It is also a violent act. So too is the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffer injury frightening or threatening someone so that they run into the road and are hit by a car, for example: see also Reg v Martin (1881) 8 QBD 54, where the accused by unlawful conduct caused panic in the course of which a number of people were injured: R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74, 79 per Lawton LJ. The crime that section 20 defines will always amount to a crime of violence for the purposes of the scheme for compensation for criminal injury. The decision of the FTT The FTT heard oral evidence from PC Sexton, a traffic investigation officer with Essex Police, who had examined the work records for Mr Nash and Mr Jones and the tachographs recording the speed of both vehicles. It also read a witness statement by Mr Nash and reports by PC Sexton and PC Thurwell, an authorised accident investigator with Essex Police. But it had to face the fact that there was no evidence as to the state of mind of Mr Hughes. It found that in all probability he ran into the road intending to commit suicide. But there was no evidence that he deliberately intended to harm the users of the road: para 35. In its view his act in throwing himself in front of the articulated lorry was not a hostile act directed towards a person who suffered injury as a result: para 37. The central part of the FTTs reasoning is set out in para 38: The tribunal accepted the evidence of PC Sexton that probably Mr Hughes primary aim was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However the tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within section 20 of the 1861 Act. The reasoning in this paragraph is rather compressed. But it is reasonably clear from the last sentence that the FTT were not satisfied that Mr Hughes actually foresaw that his behaviour might cause physical harm to others. So it was not persuaded that he had the necessary mens rea of recklessness to bring his actions within a section 20 offence. The Upper Tribunal made it clear in its judgment that the FTTs reasoning should be read in this way. It concluded that the FTTs finding that Mr Jones had not established that Mr Hughes was reckless was one to which a rational tribunal could have come and that it was not its function as an appellate body to substitute its own opinion of the facts even if it had been different from that of the tribunal: para 39. Fairly read, therefore, the reason why Mr Jones appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes. The judgment of the Court of Appeal The judgment of the Court of Appeal was delivered by Patten LJ. He accepted that in order to succeed in his application Mr Jones had to show that the FTT erred in law in reaching the decision under review: para 17. He noted that it was common ground that Mr Hughes conduct included the actus reus of a section 20 offence. He said that the issues that the court had to consider were therefore whether the FTTs conclusion that the necessary mens rea of recklessness had not been established was a permissible conclusion on the evidence, and whether it was right in its view that Mr Hughes had not committed a crime of violence within the meaning of the Scheme: para 21. In para 24 he acknowledged that the questions whether a criminal offence has been committed and whether the applicants injuries are directly attributable to that offence are undoubtedly questions of fact for the CICA or the FTT: They are required to weigh up the evidence and decide whether it supports a finding that a relevant criminal offence has been committed. As part of this process, they have to decide what primary facts are established and what inferences it is permissible to draw from those facts. But in this case I do not accept that the determination as to whether a section 20 offence is a crime of violence within the Scheme rules is anything but a question of law which can only admit of one answer. The wording of the last sentence of para 24 reveals what Patten LJ saw as the issue of law in the appeal. But it contains a flaw in his approach to what the FTT had decided in this case which affects the entire judgment from this point on. He seems to have assumed that the FTT had decided the case against Mr Jones on the ground that Mr Hughes had not committed a crime of violence within the meaning of the Scheme. In paras 25 and 26 he said that a section 20 offence involves the infliction of serious bodily harm by conduct which the accused himself foresees will cause some harm to the victim or another person, and added that most reasonable people faced with those facts would conclude that this was a crime of violence. In para 28 he rejected what he took to be the view of the FTT set out in para 37 that Mr Hughes actions in throwing himself in front of the lorry could not amount to a crime of violence. What the FTT actually said in that paragraph was that, having examined the nature of the act rather than its consequences, in its view Mr Hughes act was not a hostile act directed towards a person who suffered injury as a result. This was a conclusion of fact which was open to the FTT to reach. In paras 30 32 Patten LJ said that the FTT were clearly much influenced by the evidence of PC Sexton, who had expressed the view that Mr Hughes probably intended to kill himself rather than to cause an accident, and that it accepted it as supporting the view that it could not be satisfied that Mr Hughes either intended to cause harm or was reckless in that regard. The difficulty about this was that PC Sexton was not qualified to provide any expert evidence as to whether a person intent on suicide blanks out the possibility of harm to others by his actions. The FTT should have considered whether, on the balance of probabilities, it was likely that some harm was foreseen without attributing any evidential weight to the views of the officer. It was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the very least foresee the possibility of an accident and, as a consequence, harm being caused to other road users. The FTT had not considered the possibility of an accident and had assumed in para 35 of its decision that an intention to commit suicide was necessarily inconsistent with a deliberate intention to commit harm. From this Patten LJ concluded in para 34 of his judgment that the FTT had applied too narrow a test, as a fact finding exercise as to whether there was recklessness needed to be differently focussed. In para 35 he said that the FTTs decision involved an error of law both in terms of the directions given on the test to be applied and in relation to its finding that there was no evidence from which foresight of some harm on the part of Mr Hughes could be inferred. As to the second point, what the FTT actually said in para 38 (see para 20, above) was that they were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused by his actions. This, as the Upper Tribunal said in para 39 of its decision, was a finding to which a rational tribunal could have come. It was a finding of fact which was not open to review by the Upper Tribunal or by the Court of Appeal. Discussion The Court of Appeal appears to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes actions amounted to a crime of violence. It was also unduly critical of the FTTs reasoning, attributing to it things that it did not, in so many words, actually say. It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it. It is true that the FTT said in para 38 that it accepted the evidence of PC Sexton. But the parts of his evidence referred to were elicited from him in cross examination by counsel who was then appearing for Mr Jones. And PC Sextons comment that in his experience it was very unusual for a suicide such as this to cause such extensive personal injuries and damage to vehicles can hardly be said to have been outside his expertise. There are signs too that the Court of Appeal allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal. Taking its judgment overall, it seems to me that the Court of Appeal failed to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. It did not go on to consider whether he had committed a crime of violence within the meaning of the Scheme because, having concluded that no crime was committed, it did not have to. It is a curious feature of this appeal that the issues which the court has been asked to consider assume that the FTT did indeed hold that a section 20 offence had been committed. They are directed to the question whether an applicant who has suffered injury directly attributable to an offence under section 20 is either necessarily or, in the circumstances such as those of the present case could be, a victim of a crime of violence. For the reasons mentioned in para 18, the question whether a section 20 offence is necessarily a crime of violence admits of only one answer. But the FTT never got to the stage of asking itself that question because of its finding, on the facts, that a section 20 offence had not been committed. Conclusion I do not think that the Court of Appeal has been able to demonstrate that it was entitled to interfere with the FTTs decision. I would therefore allow the appeal and restore the decision of the FTT which was that, while every sympathy must be felt for the victim, Mrs Caldwell and their family, the terms of the Scheme do not permit an award of compensation to be made in this case. LORD CARNWATH I agree that this appeal should be allowed for the reasons given by Lord Hope. I add a brief comment on the course of the proceedings, having regard also to the new framework established under the Tribunals Courts and Enforcement Act 2007. Although the general approach under the 2007 Act was to provide a right of appeal on points of law from the First tier to the Upper Tribunal, an exception was initially made for the Criminal Injuries Compensation Appeal Panel. The reason given in the 2004 White Paper which preceded the Act was that a second tier appeal was thought unnecessary, because the first appeal was from an independent body rather than a government department (Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243), para 7.18). However, in practice a similar result was achieved by a different route. Section 18(6) of the 2007 Act enabled the Lord Chief Justice to make directions transferring certain categories of judicial review to the Upper Tribunal. The direction made by the Lord Chief Justice on 29 October 2008 (Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327) included as one class of case transferred to the Upper Tribunal: any decision of the First tier Tribunal on an appeal made in the exercise of a the right conferred by the Criminal Injuries Compensation Scheme This was the route by which the present case reached the Upper Tribunal. It was one of three cases heard together, all relating to the interpretation of the term crime of violence. As the decision explains (para 1), they were directed for hearing by a three judge panel because of the important point of principle involved. The panel consisted of two senior Upper Tribunal judges (Judge Sycamore and Upper Tribunal Judge Mesher) presided over by a High Court Judge, Nicol J. In normal circumstances in the absence of some serious error of principle, one would not have expected there to have been a need for a further appeal to the higher courts. It seems that the main reason for granting permission to appeal in this case was the perception, raised by the grounds of appeal, that there had been inconsistent treatment of such cases in the First tier tribunal. In granting permission Maurice Kay LJ noted that this was essentially a perversity challenge, with all the usual attendant difficulties, but commented: the point is an important one and does not seem always to have been approached consistently by the CICA. The grounds of appeal had referred to the case of Fuller in which, it was said, the tribunal on substantially the same facts had found the requisite degree of recklessness for a section 20 offence. That case had been heard on 30 April 2010, and the decision notice issued on 4 May 2010, shortly before the UT hearing in the present case. For that reason, no doubt, the decision does not seem to have been mentioned before the UT. The notice of appeal to the Court of Appeal enclosed papers relating to the Fuller case (Fuller v Criminal Injuries Compensation Authority (unreported) 4 May 2010), with a copy of the decision notice supplied by the Tribunals Service. That stated the effect of the tribunals decision but gave no reasons. It seems that this remained the only material available to the Court of Appeal at the full hearing. Patten LJ [2012] QB 345, paras 22 24 referred to the FTT decision in Fuller, noting that the CICAs refusal of compensation had been reversed by the FTT on appeal, but with no reasoned decision. Counsel then appearing for the CICA was reduced to submitting that, the question being one of fact for the CICA or the FTT, it was open to them on the same facts to reach a decision either way. Not surprisingly Patten LJ found that an unattractive submission. Unfortunately neither the parties nor the Court of Appeal seem to have been made aware of the relevant practice in the Social Entitlement Chamber, of which this jurisdiction forms part. Reasons may be given orally; written reasons need not be given unless requested within one month (see Tribunal Procedure (First tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), rules 33 and 34). There is before us a letter from HM Courts and Tribunals Service dated 23 January 2012. This explains that, where the appellant is represented, as in this case, the practice is for the tribunal chair to give an oral summary of the tribunals decision. A handwritten version of the oral summary is retained in the records, and also passed to the CICA for their admin purposes. It would only be transcribed by the office where a hearing had proceeded in the absence of the appellant or his representative. A request for written reasons had to be made within one month. Had such a request been made, a formal statement of reasons would have been prepared by the tribunal members themselves. That not having been done, the office was able only to supply a verbatim transcript of the handwritten summary of reasons. For present purposes I need only read the first paragraph of this summary: 1. The alleged offender jumped in front of the lorry when it was travelling on the A130 at 50 mph at 8 pm with other traffic on the road. We find that the alleged offender should have foreseen that some physical harm to some person, albeit of a minor character, might result, within the meaning of Lord Ackner in R v Savage [1992] 1 AC 699, 752. He was reckless whether or not anyone else was hurt in the process of his committing suicide The summary ended by observing that this was an important case on the construction of the scheme which is contentious, and that, although the panel had reached a unanimous decision, we would not discourage an appeal to the Upper Tribunal for more authoritative guidance on how the scheme should be interpreted in these circumstances. This invitation was not taken up on that particular occasion. Had this statement of reasons been available to the Court of Appeal, it is unlikely that they would have been unduly troubled by the apparent inconsistency. As is clear from the citations given by Lord Hope, it is not sufficient to establish recklessness that the alleged offender should have foreseen that some physical harm might result. It is necessary to show that he actually foresaw that physical harm to some other person would be the consequence of his act, even if not the degree of harm which actually occurred (see the passage from R v Mowatt, quoted by Lord Hope at para 11). The tribunals apparent misreading of Lord Ackners words in R v Savage [1992] 1 AC 699 is perhaps understandable. The passage in question is as follows: I am satisfied that the decision in Mowatt was correct and that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20, ie a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. (p752 f g, emphasis added). Taken out of context, the last sentence might seem to support the tribunals view in Fuller. However, it is clear from the preceding passage that it was not intended to have this effect. The question to which this passage provided an answer was set out at p751E: In order to establish an offence under section 20, is it sufficient to prove that the defendant intended or foresaw the risk of some physical harm or must he intend or foresee either wounding or grievous bodily harm? (emphasis added) Thus the need for actual foresight of risk was taken as given, the issue being whether it needed to be risk merely of some physical harm or of something more than that. I agree with Lord Hope that no such mistake was made in the present case by the tribunals at either level. There was accordingly no ground for setting aside their decisions. I also agree with him in questioning the description of the issue as a jury question. That may have seemed an appropriate description in 1987, when Ex p Webb was decided. However, in my view it needs to be updated. Where, as here, the interpretation and application of a specialised statutory scheme has been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First tier level. Promotion of such consistency was part of the thinking behind the recommendation of Sir Andrew Leggatt for the establishment of an appellate tribunal (Tribunals for Users, One System, One Service, March 2001, paragraphs 6.9 to 6.26). It was adopted by the government in the 2004 White Paper, paras 7.14 to 7.21), which spoke of the role of the new appellate tier in achieving consistency in the application of the law. Although the appeal from the First tier Tribunal was to be limited to a point of law, it was observed that for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases. The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier. The role is to correct errors and to impose consistency of approach. (White Paper, para 7.19). Thus it was hoped that the Upper Tribunal might be permitted to interpret points of law flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question. That might have seemed controversial. However, as an approach it was not out of line with the developing jurisprudence in the appellate courts. In Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929, paras 20 28, Lord Hoffmann, in the leading speech, had considered the interpretation by the social security commissioners of the so called cooking test for welfare benefits. He rejected the submission that, because the words used were ordinary English words, it should be treated as a pure question of fact, following Lord Reids well known comments on the meaning of the words insulting behaviour in Cozens v Brutus [1973] AC 854, 861, which Lord Hoffmann thought had been given a much wider meaning than the author intended (para 23). Commenting on the distinction between issues of law and fact, Lord Hoffmann said: 26. It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on Trial by Jury (1956) Lord Devlin said, (at p 61): The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries. 27. Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: see In re Grayan Building Services Ltd [1995] Ch 241, 254 255. Lord Hoffmann took this line of thinking a stage further in Lawson v Serco [2006] ICR 250, where the issue was the application of the Employment Rights Act 1996 to peripatetic employments, involving substantial work outside the UK. He described this as a question of law, although involving judgment in the application of the law to the facts (para 24). Under the heading fact or law, he said (para 34): Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1), namely that it applies to peripatetic employees who are based in Great Britain. Whether one characterizes this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929, upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. I would be reluctant, at least at this stage in the development of a post section 196 jurisprudence, altogether to exclude a right of appeal. In my opinion therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact finder is entitled to considerable respect. In the present case I think not only that the Tribunal was entitled to reach the conclusion which it did but also that it was right. I discussed these developments in an article in 2009 (Tribunal Justice, A New Start [2009] PL 48, pp 63 64). Commenting on Moyna I said: The idea that the division between law and fact should come down to a matter of expediency might seem almost revolutionary. However, the passage did not attract any note of dissent or caution from the other members of the House. That it was intended to signal a new approach was confirmed in another recent case relating to a decision of an employment tribunal, Lawson v Serco. Of Lord Hoffmanns words in Serco itself, I said: Two important points emerge from this passage. First, it seems now to be authoritatively established that the division between law and fact in such classification cases is not purely objective, but must take account of factors of expediency or policy. Those factors include the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other. Secondly, even if such a question is classed as one of law, the view of the tribunal of fact must still be given weight. This clarifies the position as between an appellate court on the one hand and a first instance tribunal. But what if there is an intermediate appeal on law only to a specialist appellate tribunal? Logically, if expediency and the competency of the tribunal are relevant, the dividing line between law and fact may vary at each stage. Reverting to Hale LJs comments in [Cooke v Secretary of State for Social Security [2002] 3 All ER 279 paras 5 17], an expert appellate tribunal, such as the Social Security Commissioners, is peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme. Accordingly, such a tribunal, even though its jurisdiction is limited to errors of law, should be permitted to venture more freely into the grey area separating fact from law, than an ordinary court. Arguably, issues of law in this context should be interpreted as extending to any issues of general principle affecting the specialist jurisdiction. In other words, expediency requires that, where Parliament has established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field. For the purposes of the present appeal it is unnecessary to consider further the working out of these thoughts. In the present context, they provide support for the view that the development of a consistent approach to the application of the expression crime of violence, within the statutory scheme, was a task primarily for the tribunals, not the appellate courts. LORD WALKER, LADY HALE AND LORD SUMPTION reasons they give, we too would allow this appeal. We agree with the judgments of Lord Hope and Lord Carnwath and, for the |
In April 2012 the Supreme Court considered a case called Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004, where the facts were strikingly similar to those here. In that case, as in this one, the claimant suffered an injury at work which was caused by the negligence or breach of duty of his employer. In each case the employer was either held liable (in Summers) or admitted liability (here) as to 80%, the claimant accepting that he was 20% to blame. In each case the claimant dishonestly exaggerated the extent of the consequences of the injury. In Summers the claimant originally claimed damages of over 800,000 but was awarded a total of just over 88,000 on the basis of the true facts, which came to light after undercover surveillance evidence showed that his account of the consequences of his injuries had been grossly and dishonestly exaggerated. In the instant case, the claimant, Mr Colin Hayward, claimed 419,316.59 (exclusive of promotion prospects but discounted for loss of ill health pension). He was ultimately awarded 14,720 after a trial before His Honour Judge Moloney QC (the judge). The reason for the reduction was again partly as a result of undercover surveillance and other evidence that showed that Mr Haywards claim had been grossly and dishonestly exaggerated. In Summers the issue was what remedies were available to the employer and its insurers, whereas in the instant case the issue arises out of a settlement agreement reached between the parties on 3 October 2003, the accident having occurred on 9 June 1998. The agreement was made shortly before the issue of quantum was due to be tried and was incorporated in a Tomlin Order. The employers case was conducted on its behalf by its liability insurer, Zurich Insurance Company Plc (Zurich), which is the appellant in this appeal. The employer (in practice Zurich) agreed to pay 134,973.11, inclusive of CRU of 22,473.11, in full and final settlement of Mr Haywards claim. The Tomlin order was in familiar terms as follows: BY CONSENT IT IS ORDERED THAT All further proceedings in this action be stayed, except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect. THE SCHEDULE The claimant accepts in settlement of his cause of action herein the sum of 134,973.11. Upon payment by the defendant of the several sums and costs before mentioned, they be discharged from any further liability to the claimant in relation to the claim herein. 4. In 2005, Mr Haywards neighbours, Mr and Mrs Cox, who had lived next door to him since June 2002, approached the employer to say that they believed that his claim to have suffered a serious back injury was dishonest. From their observation of his conduct and activities, they believed that he had recovered in full from his injury at least a year before the settlement. They were referred to Zurich and made full witness statements to that effect. In February 2009 Zurich commenced the present proceedings against Mr Hayward claiming damages for deceit. Zurich pleaded that both written statements made by Mr Hayward or on his behalf, and his statements of case in the Particulars of Claim and the Schedule(s) of Loss as to the extent of his injury, as well as his accounts given to the medical experts, constituted fraudulent misrepresentations. Damages were claimed equivalent to the difference between the amount of the settlement and the damages that should have been awarded if he had told the truth. The claim was subsequently amended to claim in the alternative rescission of the settlement agreement and the repayment of the sums paid under it. No point has been taken in reliance upon the fact that the action was brought in the name of Zurich rather than the employer. Mr Hayward applied to strike out the proceedings, or for summary judgment in his favour. He contended that the Tomlin Order created an estoppel per rem judicatam and/or by record, alternatively that the action was an abuse of the process because the issue of fraud had been compromised by the settlement. Deputy District Judge Bosman refused to strike out the claim, although he directed Zurich to amend the claim to seek an order that the compromise be set aside rather than an order for damages. Although it was pleaded in the original defence to Zurichs claim that Zurich must satisfy the test in Ladd v Marshall [1954] 1 WLR 1489, that contention was not ultimately pursued following the hearing before the DDJ. His decision was reversed on appeal by Judge Yelton. Zurich appealed to the Court of Appeal (Maurice Kay, Smith and Moore Bick LJJ) and the decision of the Deputy District Judge was unanimously restored: see [2011] EWCA Civ 641. It was held that the settlement gave rise to no estoppel of any kind and that the action was not an abuse of process. It was further held that the fact that Zurich had alleged deliberate exaggeration prior to the settlement did not preclude them from relying on it subsequently as a ground for rescission. In the result, the claim proceeded. I note in passing that Moore Bick LJ said at para 58: If it is to succeed in its action Zurich will have to persuade the court that it was induced to agree to the settlement by fraud on the part of Mr Hayward, a task that may not prove easy, given the fact that it already knew enough to justify the service of a defence in the terms indicated earlier. The trial The trial came before the judge in the Cambridge County Court in November 2012. He heard evidence for Zurich from Zurichs solicitor (Ms Winterbottom) and its claims manager (Mr Birkenshaw), who were responsible for the conduct of the litigation, from Mr and Mrs Cox and from Mr Sharp, who was the orthopaedic expert instructed on behalf of Zurich. Mr Hayward gave evidence together with three members of his family and also called evidence from Mr Varley, who was the orthopaedic surgeon instructed on his behalf. Mr Hayward denied any suggestion that his condition was anything other than genuine or that there was any element of exaggeration. He maintained throughout that he was a seriously disabled individual whose disability arose from the original accident and was such that, ever since, he had not been able to work or carry out normal activities of daily living without assistance. As with the first series of witness statements, Mr Hayward signed the appropriate statements of truth setting out in detail the extent of his disability and presented himself to the medical experts on that basis. Following a four day trial, the judge found that Mr Hayward had deliberately and dishonestly exaggerated the effects of his injury throughout the court process. Of Ms Winterbottom and Mr Birkenshaw, the judge said (at para 2.6 of his judgment quoted in full below) both that: [n]either can be said to have believed the representations complained of to be true and that [t]hey may not themselves have believed the representations to be true; but they did believe that they would be put before the court as true, and that there was a real risk that the court would accept them in whole or part and consequently make a larger award than Zurich would otherwise have considered appropriate. The judge further found that, although Zurich was aware at the time of the settlement of the real possibility of fraud, Mr Hayward had continued his deliberate misrepresentations even after the disclosure of the 1999 video, and that those continuing misrepresentations influenced Zurich into agreeing a higher level of settlement than it would otherwise have done. The judge therefore set aside the compromise. It followed that the issue of quantum in the original action remained to be tried. That issue was heard on 6 September 2013 and, having found that Mr Hayward had made a full recovery from any continuing physical disability by October 1999, the judge thereafter handed down a judgment awarding Mr Hayward damages in the modest sum of 14,720, which was about 10% of the settlement figure. An order was made in the later action directing him to repay the sum paid under the settlement less that amount, namely 97,780, interest of 34,379.45 and 3,951 adjustment for CRU. The appeal to the Court of Appeal Mr Hayward appealed to the Court of Appeal against the decision that the settlement should be set aside but did not appeal against the judges assessment of quantum or (contingent on whether the settlement was set aside) against the order for re payment. Moreover, the judge's findings of fact were not challenged. To my mind, as appears below, this is a critical factor in this appeal. The appeal was heard by Underhill, Briggs and King LJJ. They agreed that the appeal should be allowed. Substantive judgments were given by Underhill and Briggs LJJ. Although King LJ agreed with both judgments, I do not read their reasoning as quite the same. In his para 9 Underhill LJ set out para 2.5 of the judges judgment, where he said that the judge addressed the issue of reliance and dealt with the law. Para 2.5 is in these terms: Lastly, of course, it is necessary that the employer/Zurich should rely on the representations and suffer loss as a result. Here an interesting (and apparently unresolved) question of principle arises. In the ordinary case, sale of goods for example, reliance by the purchaser is effectively equivalent to his belief in the truth of the statement; if he believes the goods are as represented, he will be relying on the representation (and acting on it by his purchase) and if not, not. In the litigation context the position is different. In such a situation, the party to whom the representation is made is by no means likely to believe it to be true at the pre trial stage. At the very least, statements made in the course of litigation will be viewed with healthy scepticism and weighed against the other material available. Often the other party will not be sure, even then, whether the statement is in fact true, and will mainly concern himself with how likely it is to be accepted by the court. Sometimes (a staged road traffic accident for example) the other party may actually be certain from his own direct knowledge that the statement is a deliberate lie. But even then he and his advisers cannot choose to ignore it; they must still take into account the risk that it will be believed by the judge at trial. This situation is quite different from a proposed purchase, where if in doubt one can simply walk away. For these reasons, it appears to me that the many dicta relied on by CH, to the effect that liability requires that the representation must be believed by the other party, are not applicable to a case like the present. The formulation adopted by the editors of Clerk and Lindsell, 20th ed (2010), at 18 34 fits the case better; The claimant must have been influenced by the misrepresentation (my emphasis). I heard the evidence of Ms Winterbottom and Mr Birkinshaw respectively in 2003 Zurichs litigation solicitor and claims handler. Each was aware of the 1999 video and of the real possibility that this was a fraudulent claim. Each was frustrated by the reluctance of their expert, Mr Sharp, to produce a clear supplemental report saying that he now believed CH to have been shamming and to have sustained far less harm than was being claimed. Neither can be said to have believed the representations complained of to be true. But, if the law is as stated at 2.5 above, this does not matter provided the representations influenced them in their decision how much to pay CH in settlement. I am in no doubt that they did. They may not themselves have believed the representations to be true; but After noting that CH was shorthand for Mr Hayward, Underhill LJ set out (also in his para 9), para 2.6 of the judges judgment as follows: they did believe that they would be put before the court as true, and that there was a real risk that the court would accept them in whole or part and consequently make a larger award than Zurich would otherwise have considered appropriate. Acting in reliance on that belief (which, whether or not CH was truthful or honest, was the belief he and his advisers must have wanted them to form on the basis of the statements) they made the payment into court which led to the Tomlin Order settlement. Underhill LJ then set out the substance of the judges ultimate conclusions from para 6.6 in these terms: although Zurich was aware at the time of the settlement of the real possibility of fraud here, CH had continued his deliberate misrepresentations even after the disclosure of the 1999 video, and those continuing misrepresentations did influence Zurich into agreeing a higher level of settlement than it would otherwise have made. The judge added: The conditions required for setting aside the settlement are therefore made out and I so order. Para 6.6 must be put in its context, which includes paras 6.4 and 6.5. Between paras 6.1 and 6.3 the judge explained why he accepted the evidence of Mr and Mrs Cox as credible. He then said this in paras 6.4 and 6.5: 6.4. The choice before me is not the stark one between no pain at all and complete disability. What I have to decide is whether CHs actual level of pain and disability at the time of the representations was materially less than he was representing, and if so whether that misrepresentation was deliberate and dishonest. It is accepted that there was here an injury leading to a measure of pain and disability, at least up to 2002; and Mr Sharp and Mr Varley do not exclude some continuing pain (as opposed to disability) in the period after the settlement. That being so, the records of pain management and analgesic drug treatment which gave me concern are not irreconcilable with Zurichs case. 6.5 There is no special standard of proof for fraud in civil proceedings; the normal test of balance of probability applies, though of course in assessing the probabilities one bears in mind that fraud is an unusual matter. In this case, the evidence, summarised above, that CH was not in fact suffering from the level of pain and disability that he claimed is so strong that it prevails over his innocent explanations. The probability is, and I so find, that CH was experiencing some pain both before and after the settlement, and did want it treated and managed; but at the same time, he also wanted the maximum compensation he could obtain, and to get it he was dishonestly willing to exaggerate his symptoms to the doctors, and to conceal his real level of ability from them and from the world, so as to give the false impression that he was not capable of heavy work when in fact he was. He must have been aware by the time of the 14 October 1999 surveillance video (at the latest) that his physical abilities were considerably greater than he thereafter represented to the doctors and his employers representatives, and I find that his representations made after that date were knowingly false and misleading. Underhill and Briggs LJJ allowed Mr Haywards appeal for similar but not identical reasons. They did so essentially because of the state of mind of Zurich (and the employer) when the settlement was made. They rejected the conclusions of principle expressed in para 2.5 of the judges judgment set out above. The parties to this appeal agreed that the appeal raised two issues. The first was this. In order to set aside a compromise on the basis of fraudulent misrepresentation, to show the requisite influence by or reliance on the misrepresentation: a) must the defrauded representee prove that it was induced into settlement because it believed that the misrepresentations were true; or b) does it suffice to establish influence that the fact of the misrepresentations was a material cause of the defrauded representee entering into the settlement? The second was this. Under what circumstances, if any, does the suspicion by the defendant of exaggeration for financial gain on the part of the claimant preclude unravelling the settlement of that disputed claim when fraud is subsequently established? Discussion Issue 1 Subject to one point, the ingredients of a claim for deceit based upon an alleged fraudulent misrepresentation are not in dispute. It must be shown that the defendant made a materially false representation which was intended to, and did, induce the representee to act to its detriment. To my mind it is not necessary, as a matter of law, to prove that the representee believed that the representation was true. In my opinion there is no clear authority to the contrary. However, that is not to say that the representees state of mind may not be relevant to the issue of inducement. Indeed, it may be very relevant. For example, if the representee does not believe that the representation is true, he may have serious difficulty in establishing that he was induced to enter into the contract or that he has suffered loss as a result. The judge makes this point clearly and accurately in the third sentence of para 2.5 of his admirable judgment. He makes a further point in the same paragraph which is of importance in the context of this somewhat unusual case. It is this. A person in the position of the employer or its insurer may have suspicions as to whether the representation is true. It may even be strongly of the view that it is not true. However, the question in a case like this is not what view the employer or its insurer takes but what view the court may take in due course. This is just such a case, as the judge correctly perceived. As he put it, the employer and its advisers must take into account the possibility that Mr Hayward would be believed by the judge at the trial. That is because the views of the judge will determine the amount of damages awarded. In any event this is not a case in which Zurich or the employer knew that Mr Hayward was deliberately exaggerating the seriousness and long term effects of his injuries. We now know that he was thoroughly dishonest from October 1999 and that he continued to make false claims in the witness box at the trial even when the evidence against him was overwhelming. Each case of course depends upon its own facts but it seems to me to be putting the case too high to say, as Briggs LJ does at para 30, that Zurich went so far as to plead that Mr Hayward was fraudulent and to support it by a statement of truth. He says this at para 31: In my opinion the true principle is that the equitable remedy of rescission answers the affront to conscience occasioned by holding to a contract a party who has been influenced into making it by being misled or, worse still, defrauded by his counterparty. Thus, once he discovers the truth, he must elect whether to rescind or to proceed with the contract. It must follow that, if he already knows or perceives the truth by the time of the contract, he elects to proceed by entering into it, and cannot later seek rescission merely because he later obtains better evidence of that which he already believed, still less if he merely repents of it. This seems to me to be a fortiori the case where, as here, the misrepresentation consists of a disputed claim in litigation, and the contract settles that claim. To my mind that is to put the position too high in favour of fraudsters in general and Mr Hayward in particular. It is true that in its defence dated 30 October 2001 the employer (no doubt through Zurich) stated that the facts stated in the defence were true. The relevant facts were pleaded in paras 6 and 7 as follows: 6. It is admitted that the claimant suffered an injury to his back as a result of the accident. The defendant relies on the medical reports of Mr Sharp dated 11 June 2000, 20 August 2000 and 26 November 2000. The view of the claimants ongoing physical condition from Mr Bracegirdle relied on by the claimant is not accepted by the defendant. As a result of video surveillance obtained Mr Sharp formed the view that the claimants disability was not as great as he had described and he was capable of working full time even if not with heavy lifting. In view of the claimants lack of candour in relation to his physical condition it is not possible to accept that his depressive state, as described, has been consistent, is continuing or will continue into the future. 7. The claimant has exaggerated his difficulties in recovery and current physical condition for financial gain. These pleas show that Zurich was suspicious of Mr Hayward but no very clear allegations were, or could be, made. However, it is not in dispute that Zurich did as much as it reasonably could to investigate the position before the settlement. The evidence was not as good from its point of view as it might have hoped but the fact is that Zurich did not know the extent of Mr Haywards misrepresentations. The case was settled at a time when the only difference between the experts was the likely duration of future loss. The figure agreed was about half way between the respective opinions of the experts. It was not until the advent of Mr and Mrs Cox that Zurich realised the true position. Hence, as the judge expressly found, the amount of the settlement was very much greater than it would have been but for the fraudulent misrepresentations made by Mr Hayward. The small amount ultimately awarded by the judge, which is not challenged, shows the extent of the dishonest nature of the claim. I am not persuaded that the importance of encouraging settlement, which I entirely agree is considerable, is sufficient to allow Mr Hayward to retain moneys which he only obtained by fraud. The authorities I am not persuaded that the authorities lead to any other conclusion. As stated above, the ingredients of the tort of deceit are not in dispute subject to one question, which is whether a claimant alleging deceit must show that he believed the misrepresentation. In my opinion the answer is no. There are many formulations of the relevant principles in the authorities. I take two examples. In Briess v Woolley [1954] AC 333, 353 Lord Tucker said: The tort of fraudulent misrepresentation is not complete when the representation is made. It becomes complete when the misrepresentation not having been corrected in the meantime is acted upon by the representee. Damage giving rise to a claim for damages may not follow or may not result until a later date, but once the misrepresentation is acted upon by the representee the tortious act is complete provided that the representation is false at that date. To like effect, Lord Mustill said in Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd (No 2) [1995] 1 AC 501, 542A: In the general law it is beyond doubt that even a fraudulent misrepresentation must be shown to have induced the contract before the promisor has a right to avoid, although the task of proof may be made more easy by a presumption of inducement. The authorities show that questions of inducement and causation are questions of fact. I would accept the submissions made on behalf of Zurich in support of the proposition that belief is not required as an independent ingredient of the tort. It may however be relevant as part of the courts consideration of the questions whether there was inducement and, if so, whether causation has been established. In this regard I agree with the judge when he said at the end of para 2.5 that Clerk and Lindsells statement in the previous edition fits the case better. It simply said The claimant must have been influenced by the misrepresentation. That is a sub heading to para 18 34 in the 21st ed. In para 18 35 the editors say that, although the claimant must show that he was induced to act as he did by the misrepresentation, it need not have been the sole cause. It is submitted on behalf of Mr Hayward that the claimants mind must be at least partly influenced by the defendants misstatements. In Edgington v Fitzmaurice (1885) 29 Ch D 459, 483 Bowen LJ said: The real question is, what was the state of the plaintiffs mind, and if his mind was disturbed by the misstatement of the defendants, and such disturbance was in part the cause of what he did, the mere fact of his also making a mistake himself could make no difference. In Zurichs written case its argument in support of the position that belief in I see no conflict between the judges approach and those conclusions. Mr Hayward relies upon the references in the textbooks and, indeed, in cases like Edgington v Fitzmaurice to the requirement that the representation must have impacted upon the representees mind. To my mind that simply means that the representee must have been induced to act as he did in reliance upon the representation. the truth of the representation is not required is summarised as follows: (i) Inducement is concerned with causation not the representees credulity. Although one may infer that a representee who believes a misrepresentation has been induced to rely on it, an absence of belief does not mean there was no inducement. This is because what is required for there to be the inducement misrepresentation and the representee making a decision or undertaking a course of action on the basis of that representation. That does not require belief in the misrepresentation itself. (ii) also belief in other inducing causes is irrelevant. Just as belief in the misrepresentation is not required, so is a causal connection between (iii) There is a presumption of inducement, particularly where there is an intention to induce by means of fraud. If the defrauded representee first had to show he believed the misrepresentation, there would be little (or no) utility in having the presumption. (iv) That presumption should not be rebutted merely because the representee is sceptical. Otherwise, the doubting representee would be placed in a worse position than the gullible or trusting one. Given that misgivings and suspicion might be more likely to arise where there is fraud, it would be perverse for the prospects of redress to be extinguished on account of those very doubts. Of all representees, it may be thought the defrauded representee (whether believing or not) should be the most deserving of protection. (v) There is no duty upon the defrauded representee to exercise due diligence to determine whether there are reasonable grounds to believe the representations made. Conversely, the fact that the representee does not in fact wholly credit the fraudster and carries out its own investigations does not preclude it from having been induced by those representations. Qualified belief or disbelief does not rule out inducement, particularly where those investigations were never going to find out the evidence that subsequently came to light. (vi) Whereas proof that the representee had knowledge (or blind eye knowledge) of the falsity suffices, nothing short of that avails the misrepresentor. As to sub para (i), inducement, I would accept the submission on behalf of Zurich that materiality is evidence of inducement because what is material tends to induce. As Hutley JA put it in the Court of Appeal of New South Wales, Gipps v Gipps [1978] 1 NSWLR 454, 460, [t]o state that a person is induced by a statement is to affirm a causal relation which is a question of fact, not of law. See also Downs v Chappell [1997] 1 WLR 426, per Hobhouse LJ at 433. Moreover, albeit by reference to section 18(2) of the Marine Insurance Act 1905, in Pan Atlantic Lord Goff, accepted at 517C and 517E respectively that in gauging materiality it suffices if the misrepresentation (or non disclosure) had an impact on the mind or an influence on the judgment. In the same case Lord Mustill adopted references to inducement not being established where the misrepresentation (at 545E) did not influence the judgment, (at 546C) did not influence the mind or (at 551C) had no effect on the decision. In para 6.6 of his judgment (quoted at para 15 above) the judge held that the continuing representations influenced Zurich into agreeing to a higher level of settlement that it would otherwise have done. The judge was entitled to adopt the proposition in Clerk and Lindsell that the claimant must have been influenced by the misrepresentation. In para 28 of his judgment Briggs LJ said this: In my judgment the authorities on rescission for misrepresentation speak with one voice. For a misstatement to be the basis for a claim to rescind a contract, the claimant must have given some credit to its truth, and been induced into making the contract by a perception that it was true rather than false. Where judges and text book writers have used the word influenced as the touchstone for reliance they have done so in order to allow for belief in the truth of the misrepresentation to be a contributory rather than sole cause of the representees entry into the contract: see for example Clerk and Lindsell on Torts (21st ed) para 18 35. They have not thereby intended to allow in any case where the representee can show that he was influenced into making the contract by the mere making of a representation which he did not believe was true. I would not accept this analysis. As I see it, the representees reasonable belief as to whether the misrepresentation is true cannot be a necessary ingredient of the test, because the representee may well settle on the basis that, at any rate in a context such as the present, he thinks that the representation will be believed by the judge. But it is centrally relevant to the question of inducement and causation. Logically, the representee is more likely to settle for a different reason other than the representation, if his reasonable belief is that it is false. One of the extraneous factors in this case, for example, was the fact that the insurers expert Mr Sharp had failed to produce, in their view, a report which set out the extent of the misrepresentations with sufficient clarity see para 15 above. As to sub para (ii), multiple causes, the text books strongly support the proposition that it is sufficient for the misrepresentation to be an inducing cause and that it is not necessary for it to be the sole cause: see eg Chitty on Contracts, 32nd ed, volume 1, para 7 37. See also, for example, Barton v Armstrong [1976] AC 104, where Lord Cross, delivering the majority advice of the Privy Council in a case involving duress by threats of physical violence, invoked, as an appropriate analogy, the treatment of contributing causes in fraud cases. He said at p 118G H: If it were established that Barton did not allow the representation to affect his judgment then he could not make it a ground for relief. If on the other hand Barton relied on the misrepresentation Armstrong could not have defeated his claim to relief by showing that there were other more weighty causes which contributed to his decision for in this field the court does not allow an examination into the relative importance of contributing causes Lord Hoffmann made much the same point in Standard Chartered Bank Ltd v Pakistan National Shipping Corpn Ltd (Nos 2 and 4) [2003] 1 AC 959, paras 15 16: if a fraudulent representation is relied upon, in the sense that the claimant would not have parted with his money if he had known that it was false, it does not matter that he also had some other negligent or irrational belief about another matter and, but for that belief, would not have parted with his money either. The law simply ignores the other reasons why he paid. Lord Hoffmann then quoted with approval the part of the advice of Lord Cross quoted above and added: This rule seems to me to be based upon sound policy. Finally, reliance is placed upon the decision of the High Court of Australia in Gould v Vaggelas (1984) 157 CLR 215, which was a case of deceit, where Wilson J said at p 236: The representation need not be the sole inducement in sustaining the loss. If it plays some part, even if only a minor part, in contributing to the course of action taken a causal connection will exist. As to sub para (iii), the presumption of inducement, it is not a presumption of law but an inference of fact. For example, Chitty on Contracts, 32nd ed (2015), vol 1, put it thus at para 7 040: Once it is proved that a false statement was made which is material in the sense that it was likely to induce the contract, and that the representee entered the contract, it is a fair inference of fact (though not an inference of law) that he was influenced by the statement, and the inference is particularly strong where the misrepresentation was fraudulent. Lord Mustill put it in this way in Pan Atlantic at p 551. He said that the representor: will have an uphill task in persuading the court that the . misstatement . has made no difference [T]here is a presumption in favour of a causative effect. We were further referred to the decision of Briggs J in a case about fraudulent misrepresentations, namely Ross River Ltd v Cambridge City Football Club Ltd [2007] EWHC 2115 (Ch), [2008] 1 All ER 1004, para 241, where he said: First and foremost, in a case where fraudulent material misrepresentations have been deliberately made with a view (as I find) improperly to influence the outcome of the negotiation of the cont[r]act in favour of the maker and his principal, by an experienced player in the relevant market, there is the most powerful inference that the fraudsman achieved his objective, at least to the limited extent required by the law, namely that his fraud was actively in the mind of the recipient when the contract came to be made. See also Australian Steel & Mining Corpn Pty Ltd v Corben [1974] 2 NSWLR 202 per Hutley JA at 208 209. As to sub para (iv), rebutting the presumption of inducement, the authorities are not entirely consistent as to what is required to rebut the presumption. However, it is not strictly necessary to address those differences in this case because, however precisely the test is worded whether what must be proved is that the misrepresentation played no part at all or that it did not play a determinative part, or that it did not play a real and substantial part I would accept the submission made on behalf of Zurich that the presumption is not rebutted on the facts as found in this case. There can be no doubt on the judges findings of fact that, if Zurich had known the true position as to Mr Haywards state of recovery, it would not have offered anything like as much as it in fact offered and settled for in October 2003. Since the issue was touched on in argument, I would simply say that the authorities seem to me to support the conclusion that it is very difficult to rebut the presumption. As it seems to me, the orthodox view is contained in Sharland v Sharland [2015] 3 WLR 1070. In Smith v Kay (1859) 7 HLC 750, 759 Lord Chelmsford LC asked this question in a rescission case based on an allegation of fraudulent misrepresentation: can it be permitted to a party who has practised a deception, with a view to a particular end, which has been attained by it, to speculate upon what might have been the result if there had been a full communication of the truth? In Sharland v Sharland Baroness Hale observed of Smith v Kay that it indeed held that a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality or that it actually played a causative part in inducement. This view is supported by Downs v Chappell [1997] 1 WLR 426, 433D E, where Hobhouse LJ said: The judge was wrong to ask how they [the representees] would have acted if they had been told the truth. They were never told the truth. They were told lies in order to induce them to enter into the contract. The lies were material and successful. The judge should have concluded that the plaintiffs had proved their case on causation . See also BP Exploration Operating Co Ltd v Chevron Shipping Co [2003[ 1 AC 197, per Lord Millett at 244H to 245A. The Hon KR Handley wrote an impressive article entitled Causation in Misrepresentation in 2015 LQR 277, where he expressed this view at p 284: The representor must have decided to make the misrepresentation because he or she judged that the truth or silence would not, or might not, serve their purposes or serve them so well. In doing so they fashioned an evidentiary weapon against themselves, and the court should not subject the victim to what if inquiries which the representor was not prepared to risk at the time. As to sub para (v), I would accept the submissions made on behalf of Zurich. In particular I agree that the representee has no duty to be careful, suspicious or diligent in research. As Rigby LJ put it in Betjemann v Betjemann [1895] 2 Ch 474, 482: What is the duty of a man to inquire? To whom does he owe that duty? Certainly not to the person who had committed the concealed fraud. Here Zurich did as much as it reasonably could to investigate the accuracy and ramifications of Mr Haywards representations before entering into any settlement. As explained above, the questions whether Zurich was induced to enter into the settlement agreement and whether doing so caused it loss are questions of fact, which were correctly decided in its favour by the judge. I accept the submission that the fact that the representee (Zurich) does not wholly credit the fraudster (Mr Hayward) and carries out its own investigations does not preclude it from having been induced by those representations. Qualified belief or disbelief does not rule out inducement, particularly where those investigations were never going to find out the evidence that subsequently came to light. That depended only on the fact that Mr and Mrs Cox subsequently came forward. Only then did Zurich find out the true position. As Mr Hayward knew, Zurich was settling on a false basis. I do not think that any of the cases relied upon on behalf of Mr Hayward, or by the Court of Appeal in his favour justifies its decision. They include Kyle Bay Ltd (t/as Astons Nightclub) v Underwriters Subscribing under Policy No 019057/08/01 [2007] EWCA Civ 57; [2007] 1 CLC 164. Underhill LJ stressed, in his analysis in para 24, that Kyle Bay was not on all fours with the present case, but that it was illustrative of a similar principle. To my mind it is of no real assistance because it was a case which, as Neuberger LJ observed in Kyle Bay at para 42, involved unusual facts and in which the approach of the claimant appeared mystifying. That is not the position here. As to further cases that were said to establish a requirement of belief, in the Court of Appeal Underhill LJ referred at para 12 to Sprecher Grier Halberstam LLP v Walsh [2008] EWCA Civ 1324, para 17, Arkwright v Newbold (1881) 17 Ch D 301, p 324, and Strover v Harrington [1988] Ch 390, p 407. However, as Underhill LJ said, none of those cases contains any relevant discussion of a principle to the effect that belief in the representation is required before a settlement such as this can be set aside. As to sub para (vi), knowledge of falsity, as I understand it, it is accepted on behalf of Zurich that, where the representee knows that the representation is false, he cannot succeed. There is some support in the authorities for this view. So, for example Chitty says at para 7 036, The burden of proving that the claimant had actual knowledge of the truth, and therefore was not deceived by the misrepresentation, lies on the defendant; if established, knowledge on the part of the representee is of course a complete defence, because he is then unable to show that he was misled by the misrepresentation. In the 5th ed (2014) of Spencer Bower & Handley on Actionable Misrepresentation at p 122, para 11.07 say this. A representee cannot be misled by a statement which he knew to be false. The representees knowledge of the truth must normally be full and complete. Partial and fragmentary information, or mere suspicion, will not do, suspicion, doubt and mistrust do not have the same consequence as knowledge. A representee who knows that the representation was false to some extent, but acts on it, may establish inducement if the departure from the truth was significantly greater than expected. See also Gipps v Gipps per Hutley JA at p 460. As I said earlier, it cannot fairly be said that Zurich had full knowledge of the facts here. It follows that it is not necessary to express a final view on the question whether it always follows from the fact that the representee knows that the representation is false that he cannot succeed. As explained earlier, questions of inducement and causation are questions of fact. It seems to me that there may be circumstances in which a representee may know that the representation is false but nevertheless may be held to rely upon the misrepresentation as a matter of fact. This very case could have been such a case. The judge considered this possibility in para 2.5 of his judgment (quoted at para 14 above), where he said: At the very least, statements made in the course of litigation will be viewed with healthy scepticism and weighed against the other material available. Often the other party will not be sure, even then, whether the statement is in fact true and will mainly concern himself with how likely it is to be accepted by the court. Sometimes (a staged road traffic accident for example) the other party may actually be certain from his own direct knowledge that the statement is a deliberate lie. But even then he and his advisers cannot choose to ignore it; they must still take into account the risk that it will be believed by the judge at trial. This situation is quite different from a proposed purchase, where if in doubt one can simply walk away. It seems to me that in the kind of case which I have put in italics the claimant may well establish inducement on the facts. This was not however a case in which the judge found that Zurich was certain from its own direct knowledge that Mr Haywards representations contained deliberate lies. Quantum is not in issue. It follows that I would answer the questions posed by the first issue (and set out in para 17 above) in this way. I would answer (a) no and (b) yes and would allow the appeal. Issue 2 The second issue (also set out in para 17 above) is in these terms: Under what circumstances, if any, does the suspicion by the defendant of exaggeration for financial gain on the part of the claimant preclude unravelling the settlement of that disputed claim when fraud is subsequently established? The answer seems to me to follow from the answer to the first question. As I see it, it is difficult to envisage any circumstances in which mere suspicion that a claim was fraudulent would preclude unravelling a settlement when fraud is subsequently established. Conclusion For these reasons I would allow the appeal. LORD TOULSON: (with whom Lord Neuberger, Lady Hale and Lord Reed agree) I agree with the judgment of Lord Clarke. I add this judgment because of the importance of the matter, about which we are differing from the judgment of the Court of Appeal, based on what I respectfully consider to have been an erroneous conclusion drawn from earlier case law. The issue raised by this appeal is important both as a matter of law and for its practical consequences for insurers and dishonest claimants. I gratefully adopt Lord Clarkes account of the facts. Bogus or fraudulently inflated personal injury claims are not new. One of the great advocates of the 20th century, Sir Patrick Hastings, recounted vividly in his memoirs, Cases in Court (William Heinemann Ltd, 1949, pp 4 to 20), how as a young barrister before World War 1 he built up a practice defending insurance companies against such claims. Now as then, they present a serious problem. Personal injury claims usually fall to be met by insurers and the ultimate cost is borne by other policy holders through increased premiums. Insurers may often have grounds for suspicion about a claim but lack the hard evidence necessary to prove fraud. To pursue an allegation of fraud without strong evidence is risky. If in such circumstances insurers settle a claim, not in the belief that it is bona fide but in the belief that it is likely to succeed, and if afterwards they discover evidence which proves that the claim was fraudulent, can they bring proceedings to set aside the agreement and recover damages for deceit? In this case the judge at first instance said yes, but the Court of Appeal said no, because in such circumstances the insurers were not deceived. The question which court gave the right answer is important, both for insurers and for those who advise personal injury claimants. Strike out application The Court of Appeal rightly rejected Mr Haywards application to strike out the action on the ground that the issue was res judicata or that the action was an abuse of the process of the court: [2011] EWCA 641. The claim had been compromised by an agreement but, as Lord Bingham emphasised in HIH Casualty and General Insurance Ltd v Chase [2003] UKHL 6, [2003] 2 Lloyds Rep 61, paras 15 and 16, fraud is a thing apart and unravels all. Once proved, it vitiates judgments, contracts and all transactions whatsoever (per Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702, 712, cited by Lord Bingham). I refer to this matter because in his judgment now under review Underhill LJ called into question the correctness of the Court of Appeals earlier judgment, and Mr Haywards arguments on this appeal were similarly flavoured with criticism of it, although it was not open to him to attack it directly. Judgment of the County Court I would like to pay testimony to the judgment of His Honour Judge Moloney QC as a model of clarity and cogency. Lord Clarke has set out at, paras 14 and 15, the judges self direction as to the law (para 2.5) and his application of it to the facts (para 2.6). Judgment of the Court of Appeal Briggs LJs reasoning was short and direct. He held that for a misstatement to be the basis for a claim to rescind a contract, the claimant must have given some credit to its truth and have been induced into making the contract by a perception that it was true rather than false. He said that when judges and text book writers used the word influenced as the touchstone for reliance, they did so in order to accommodate cases where belief in the truth of the statement was a contributory rather than the sole cause of the representees entry into the contract. Underhill LJs reasoning was somewhat different but led him to the same place. His starting point was that when a person enters into a contract to settle a dispute he knowingly takes the risk of making a payment for a claim which may be ill founded, and he pays a sum commensurate with his assessment of that risk. But he said that the risk which a settlor must be taken to have accepted will depend on the circumstances of the case. A settlor will not normally be taken to have accepted the risk that the claimants case is not just ill founded but dishonest. However, if it is sufficiently apparent that the settlor intended to settle notwithstanding the possibility that the claim was fraudulent, he will be held to the settlement. The fact that the insurers had pleaded that the claim was exaggerated for financial gain proved their awareness of the possibility of fraud, but they chose to settle the claim with that awareness, and it was contrary to the public interest in the settlement of disputes for them to be allowed to set aside the settlement. Underhill LJ was conscious that the logic of this reasoning was that Mr Haywards application to strike out the insurers action ought to have succeeded, contrary to the Court of Appeals earlier decision. He described it as a debatable point whether that decision precluded him from deciding the case on the reasoning which he thought should apply, but he considered that it was possible to re cast his reasoning in a form which was perhaps less satisfactory, but which avoided conflict with the earlier decision. He held that although in one sense the misrepresentations operated on the mind of the insurers, that did not constitute reliance in the relevant sense. In deciding whether to settle, the insurers formed their own independent judgment whether the claim was likely to succeed, and there was no relationship of reliance of the kind which was required for the insurers action to succeed. Ultimately, therefore, he allowed the appeal on substantially the same ground as Briggs LJ. Analysis To establish the tort of deceit it must be shown that the defendant dishonestly made a material false representation which was intended to, and did, induce the representee to act to its detriment. The elements essential for liability can be broken down under three headings: (a) the making of a materially false representation (the defendants conduct element); (b) the defendants accompanying state of mind (the fault element); and (c) the impact on the representee (the causation element). Where liability is established, it remains for the claimant to establish (d) the amount of any resulting loss (the quantum element). In this case there is now no issue as to elements (a), (b) and (d). Mr Hayward made false and material representations to the insurers as well as to the court, both directly and through what he told the doctors and his own legal advisers with a view to it being communicated to insurers and to the court. He did so dishonestly, with the intention of inducing the insurers to pay compensation to him on a false basis. The judges assessment of quantum is not challenged. The issue concerns element (c). In the statement of facts and issues, the parties have identified the critical issue in these terms: In order to set aside a compromise on the basis of fraudulent misrepresentation, to show the requisite influence by or reliance on the misrepresentation, (a) must the defrauded representee prove that it was induced into settlement because it believed that the misrepresentations were true; or (b) does it suffice to establish influence that the fact of the misrepresentations was a material cause of the defrauded representee entering into the settlement? The parties have raised an additional question as to the circumstances, if any, in which suspicion by a settlor of exaggeration of the claim precludes unravelling the settlement when fraud is subsequently established; but insofar as the question involves any point of law, it is enveloped by the first issue. Some torts do not require the claimant to have suffered any detriment. Trespass is an example. Deceit is not in that category. It is essential to show that the defendants false representation caused the claimant to act to its detriment. It stands to reason that this should be so. The vice of the defendants conduct consists in dishonestly making a false representation with the intention of influencing the representee to act on it to its detriment. If it does not cause the representee to do so, the mischief against which the tort provides protection will not have occurred. A misrepresentation which has no impact on the mind of the representee is no more harmful than an arrow which misses the target. Inducement is a question of fact. In a typical case the only way in which a dishonest representation is likely to influence the representee to act to its detriment will be if the representee is led to believe in its truth. It is therefore not surprising to find statements by judges in such cases that the misrepresentee must show that he believed or relied on the misrepresentation. Redgrave v Hurd (1881) 20 Ch D 1, to which Underhill LJ referred, is an example. The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the practice brought him in about 300 a year. In fact it did not bring in anything like that amount. The parties entered into partnership and into a separate contract for the sale of the house, which made no reference to the business. The defendant paid a deposit and was let into possession. On discovering that the practice was not worth what the plaintiff had said, the defendant gave up possession and refused to complete the purchase. It was therefore a classic case of a purchaser who claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff sued for specific performance; the defendant counterclaimed for rescission of the contract and damages for deceit. The plaintiff succeeded at first instance before Fry J, who was not satisfied that the defendant had proved that he relied on the misrepresentation. The Court of Appeal upheld the dismissal of the defendants counterclaim in deceit on the ground that he had not sufficiently pleaded or proved dishonesty, but it allowed his appeal on the issue of rescission on the ground that the facts gave rise to an inference that he was induced to enter into the contract by the plaintiffs misrepresentation. Jessel MR said at p 21: If it is a material misrepresentation calculated to induce him to enter into the contract, it is an inference of law that he was induced by the representation to enter into it, and in order to take away his title to be relieved from the contract on the ground that the representation was untrue, it must be shown either that he had knowledge of the facts contrary to the representation, or that he stated in terms, or shewed clearly by his conduct, that he did not rely on the representation. Smith v Chadwick (1884) 9 App Cas 187 was another case of a purchaser who claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a prospectus as to the output of the iron works. The House of Lords held that his claim failed because the critical words of the prospectus were ambiguous, and the plaintiff had failed to show that he understood them in a sense which was false. Lord Blackburn surmised, at p 200, that the plaintiffs counsel refrained from asking the plaintiff in examination in chief how he understood the wording for fear of receiving a damaging answer. The case was cited in the present case for the opening passage in the speech of Lord Selborne LC at p 190: My Lords, I conceive that in an action of deceit, like the present, it is the duty of the plaintiff to establish two things; first, actual fraud, which is to be judged by the nature and character of the representations made, considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making them, and the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts: and, secondly, he must establish that this fraud was an inducing cause to the contract; for which purpose it must be material, and it must have produced in his mind an erroneous belief, influencing his conduct. (Emphasis added) In the same case Lord Blackburn had pertinent things to say about the fundamental link between fraud and damage in an action for deceit, at p 195: In Pasley v Freeman, 2 Smiths Leading Cases 66, 73, 86 (8th ed), Buller J says: The foundation of this action is fraud and deceit in the defendant and damage to the plaintiffs. And the question is whether an action thus founded can be sustained in a court of law. Fraud without damage, or damage without fraud, gives no cause of action, but where these two concur an action lies, per Croke J, 3 Bulst 95. Whatever difficulties there may be as to defining what is fraud and deceit, I think no one will venture to dispute that the plaintiff cannot recover unless he proves damage. In an ordinary action of deceit the plaintiff alleges that false and fraudulent representations were made by the defendant to the plaintiff in order to induce him, the plaintiff, to act upon them. I think that if he did act upon these representations, he shews damage; if he did not, he shews none. So far I have been considering the typical case. But it is possible for a representor to make a false and fraudulent misrepresentation, with the intention of influencing the representee to act on it to its detriment, without the representee necessarily believing it to be true. If the representor succeeds in his object of influencing the representee to act on the representation to its detriment, there will be the concurrence of fraud and deceit in the representor and resulting damage to the representee. In principle, the representee should therefore be entitled to a remedy in deceit. That inducement is a question of fact, necessary to establish causation in all cases but not necessarily in the same way, was recognised and well expressed in the decision of the Court of Appeal of New South Wales in Gipps v Gipps [1978] 1 NSWLR 454. A woman sued her former husband for deceit in relation to a property settlement which they had entered into at the time of their divorce. They were joint shareholders in a private company and as part of the settlement the wife transferred her shares to the husband. The shares were valued by an independent accountant, but the husband dishonestly contrived to see that the valuation was a substantial undervaluation. The wife did not trust the husband and suspected that the shares were worth more than the valuation, but she did not know the extent of the undervaluation. It was submitted on the husbands behalf that if a representee knows that a representation is false in a material particular, as a matter of law he or she cannot sue in respect of it. The court rejected that argument. After referring to various authorities, including particularly the passage from the judgment of Jessel MR in Redgrave v Hurd set out at para 64 above, Hutley JA said (at p 460): The question whether a person has been induced by a statement made to him to enter into an agreement is, in my opinion, a single issue of fact. No doubt pre contractual knowledge that the statement made is not wholly true has a very direct bearing on the resolution of this question of fact but it does not of itself necessarily provide the answer. To say that it does is to formulate a different question. To state that a person is induced by a statement is to affirm a causal relation which is a question of fact, not of law. That being so, it is impossible to apply to any situation a rule which produces a final result. The trial judge or jury have to answer the question: Did the misrepresentation cause the representee to enter into the contract, it being understood that the representation, as was stated in Australian Steel and Mining Corpn Pty Ltd v Corben [1974] 2 NWLR 202, 207, was among the factors which induced the contract. Some assistance may also be had from the judgment of Hobhouse LJ in Downs v Chappell [1997] 1 WLR 426, 433, where he said that for a plaintiff to succeed in the tort of deceit of deceit it is necessary for him to prove that (1) the representation was fraudulent, (2) it was material and (3) it induced the plaintiff to act to his detriment. He added that As regards inducement, this is a question of fact and that The word reliance used by the judge has a similar meaning but is not the correct criterion. I agree with His Honour Judge Moloney QCs analysis in para 2.5 of his judgment. The question whether there has been inducement is a question of fact which goes to the issue of causation. The way in which a fraudulent misrepresentation may cause the representee to act to his detriment will depend on the circumstances. He rightly focused on the particular circumstances of the present case. Mr Haywards deceitful conduct was intended to influence the mind of the insurers, not necessarily by causing them to believe him, but by causing them to value his litigation claim more highly than it was worth if the true facts had been disclosed, because the value of a claim for insurers purposes is that which the court is likely put on it. He achieved his dishonest purpose and thereby induced them to act to their detriment by paying almost ten times more than they would have paid but for his dishonesty. It does not lie in his mouth in those circumstances to say that they should have taken the case to trial, and it would not accord with justice or public policy for the law to put the insurers in a worse position as regards setting aside the settlement than they would have been in, if the case had proceeded to trial and had been decided in accordance with the corrupted medical evidence as it then was. For those reasons, which accord to all intents and purposes with the judgment of Lord Clarke, I too would allow the insurers appeal and restore the order of Judge Moloney. Postscript It was expressly conceded on behalf of the insurers for the purposes of the present appeal that whenever and however a legal claim is settled, a party seeking to set aside the settlement for fraud must prove the fraud by evidence which it could not have obtained by due diligence at the time of the settlement. It makes no difference to the outcome of the present case and the court heard no argument about whether the concession was correct. Any opinion on the subject would therefore be obiter, and since the court has not considered the relevant authorities (including Commonwealth authorities such as Toubia v Schwenke [2002] NSWCA 34) or academic writing, it is better to say nothing about it. |
So much depends upon how one frames the question. Put simply, when disputes arise about the age of some one who is asking a local childrens services authority to provide him with accommodation under section 20(1) of the Children Act 1989, who decides whether he is a child or not? Section 20(1) reads as follows: (1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. By section 105(1) of the Act, a child means . a person under the age of eighteen. The appellants, supported by the Childrens Commissioner for England, say that, in cases of dispute, the court must decide whether a person is a child on the balance of probabilities. The respondent local authorities, supported by the Home Secretary, say that the authority must decide the matter, subject only to judicial review on the usual principles of fairness and rationality. The importance of the issue No doubt there have always been foundlings, abandoned or runaway children whose age was not immediately apparent to the authorities. But with many of these it will at least have been apparent that they were children. And sooner or later it will usually have been possible to establish their exact age by discovering their identity and obtaining a birth certificate. The problem of determining age has come to prominence with the recent increase in migration and particularly in unaccompanied young people coming to this country, some of them to claim asylum for their own benefit but some of them also having been trafficked here for the benefit of others. Although the focus of debate has been upon unaccompanied asylum seeking children, we must not lose sight of the other young people for whom the issue may also be important. The importance comes from two directions. If a young person is a child, and otherwise meets the qualifying criteria, he must be provided with accommodation and maintenance under sections 20(1) and 23(1) of the 1989 Act. This brings with it a wider range of services than other forms of housing and benefit provision. These include the services for young people who leave social services accommodation which were described in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535, paras 20 24. While once upon a time young people may have resisted the quasi parental services provided for children in need, many now recognise that they bring distinct advantages over the housing and welfare benefits available to home claimants (as in R (M) v Hammersmith and Fulham London Borough Council, above, and R (G) v Lambeth London Borough Council [2009] UKHL 26, [2009] 1 WLR 1299) and the National Asylum Support Service (NASS) support available to asylum seekers, as in the cases before us. The Home Secretary also adopts different policies in relation to asylum seekers who are under eighteen. Legally, these may not be relevant to the issue which we have to determine, and in practice they are much more susceptible to change than is primary legislation such as the 1989 Act. But they are an important part of the factual background. Not only are unaccompanied asylum seeking children looked after by the local childrens services authorities rather than by NASS while their claims are decided. Currently, if a claim is rejected when the child is under the age of seventeen and a half, the Home Secretary will not remove him for three years or until he reaches seventeen and a half, whichever is the earlier, unless there are adequate arrangements to look after him in his country of origin. Also, such children will not be detained under the Home Secretarys immigration powers, save in exceptional circumstances and then normally only overnight. When a young person who says that he is a child arrives in this country or makes a claim for asylum, immigration officers make a preliminary determination based upon his physical appearance and demeanour. In a borderline case, the policy is to give him the benefit of the doubt and treat him as a child. Under the Secretary of States 2007 Policy on Age Dispute cases, if his appearance or demeanour very strongly suggests that he is aged eighteen or over, the officer will dispute the age unless there is credible documentary or other evidence to show the age claimed. And if his appearance or demeanour very strongly suggest that he is significantly over eighteen then he will be treated as an adult. In the middle, age disputed, category, it is the policy to refer the case for assessment by the local social services authority and to accept that assessment if it is considered to have been properly carried out (in accordance with the procedural guidance given by Stanley Burnton J in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280). This was the policy adopted by the Home Secretary in August 2007. But in February 2007 the Home Office published a consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children; and in January 2008, it published its conclusions and recommendations in Better Outcomes: The Way Forward, Improving the Care of Unaccompanied Asylum Seeking Children. Key Reform Number 4 was to put in place better procedures to assess age, in order to ensure that children and adults are not accommodated together. Both the Childrens Commissioner and the Refugee Council have been critical of the present procedures, based partly upon their own experience and observations and partly upon research conducted by Professor Heaven Crawley for the Immigration Law Practitioners Association. As Ms Nathalie Lieven QC for the Home Secretary points out, the issue before us is not whether the policy and procedures for assessing age in these cases could be improved, but whether the law requires that, in cases which cannot be resolved through those processes, the court shall make the final determination. However, the one thing which these proposals do show is that the assessment of age can be and is carried out quite separately from the assessment of need and the other criteria for accommodation under section 20. These two cases A arrived in this country from Afghanistan on 13 November 2007 and claimed asylum the following day, stating that his date of birth was 8 April 1992 (making him then fifteen and a half). The immigration officer considered that he was eighteen and referred him to Croydon for an age assessment. He was interviewed by two social workers who assessed him as an adult. He was therefore referred to NASS. Soon afterwards his solicitors produced a copy of a birth certificate from Afghanistan showing his date of birth as 8 April 1992. They also arranged for him to be examined by a paediatrician, who reported that in her opinion he was aged between 15 and 17. A claim for judicial review of the decision that he was not entitled to accommodation under section 20 of the 1989 Act was made on 7 March 2008 and an interim order made against the authority until the determination of the claim. M arrived in this country in November 2006 and claimed asylum three days later, saying that he was born on 15 December 1989 (making him then just under seventeen). His age was disputed and he was referred to Lambeth for an age assessment by two social workers who concluded that he was over eighteen. Once again, a paediatricians report was obtained which concluded that he was indeed aged seventeen. Judicial review proceedings were brought and Lambeth reviewed its decision but provided further reasons for concluding that M was more than twenty years old. Meanwhile an immigration judge heard his appeal against the refusal of asylum and the Home Secretarys decision as to his age. The judge was not referred to the local authoritys assessment and accepted the paediatricians report. The Home Secretary therefore granted M discretionary leave to remain which has been extended pending the determination of his application for an extension of his leave. These two and five other claims for judicial review were joined for the purpose of deciding a number of preliminary issues, with these two being treated as the lead cases. Those issues were (a) whether the local authorities determinations were contrary to the procedural protections in article 6 and/or 8 of the European Convention on Human Rights; (b) whether the question of child or not for the purpose of section 20 of the 1989 Act was one of precedent fact for the court to determine on the balance of probabilities; and (c) whether in Ms case the local authority could disagree with the immigration judges decision. On 20 June 2008, Bennett J decided all three issues in favour of the local authorities: [2008] EWHC 1364 (Admin). He also declined to decide a fourth issue, as to the evidential value of paediatricians reports in age disputes. That issue has since been determined by Collins J in R (A) v Croydon London Borough Council; R (WK) v Kent County Council [2009] EWHC 939 (Admin), the Kent case taking the place of the Lambeth case as lead case in this issue. Collins J held that the paediatricians views should be taken into account but that they were not likely to be any more reliable or helpful than those of experienced social workers and the authorities were entitled to prefer the latter. He was, of course, bound by the decision of the Court of Appeal as to the role of the courts in these cases. On 18 December 2008, the Court of Appeal had dismissed the appellants appeals from the decisions of Bennett J on the preliminary issues of law: [2008] EWCA Civ 1445, [2009] PTSR 1011. The issues have been slightly reformulated for the purpose of the appeals before us, but the first two are closely inter related: (i) whether, as a matter of statutory construction, the duty imposed by section 20(1) is owed only to a person who appears to the local authority to be a child, so that the authoritys decision can only be challenged on Wednesbury principles, or whether it is owed to any person who is in fact a child, so that the court may determine the issue on the balance of probabilities; (ii) whether the issue child or not is a question of precedent or jurisdictional fact to be decided by a court on the balance of probabilities; and (iii) whether section 20(1) gives rise to a civil right for the purpose of article 6(1) of the European Convention on Human Rights and if so whether the determination of age by social workers subject to judicial review on Wednesbury principles is sufficient to comply with the requirement that the matter be determined by a fair hearing before an independent and impartial tribunal. The construction of section 20(1) The argument on construction, advanced by Mr John Howell QC for A, is quite straightforward. The words of section 20(1) themselves distinguish between the statement of objective fact any child in need within their area and the descriptive judgment who appears to them to require accommodation as a result of the three listed circumstances which is clearly left to the local authority. The definition of child in section 105(1), which applies throughout the 1989 Act, is unqualified: a person under the age of eighteen not a person who appears to the local authority to be under the age of eighteen or a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen. Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read into section 20 which are not there. This argument is bolstered by two others. One is derived from the legislative history. Section 20(1) of the 1989 Act is the successor to section 2 of the Child Care Act 1980 which consolidated (without amendment) what had been section 1 of the Children Act 1948 with later legislation. The 1948 Act was an important component of the establishment of the post war welfare state, bringing together all the disparate powers and duties of the state to look after children who had no families or whose families were unable to look after them properly, and infusing those new duties with a commitment to the welfare of the individual child which had been so lacking before (see Report of the Care of Children Committee, Chairman: Miss Myra Curtis, 1946, Cmd 6922). Section 1(1) of the 1948 Act, reproduced in section 2(1) of the 1980 Act, began Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen . Section 20(1) of the 1989 Act made various changes. These included raising the age of eligibility to cater for all children, not just those who appeared to be under seventeen. But they also included the change in wording, which no longer limited the duty to those who appeared to the local authority to be under the relevant age. There is nothing in the Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party (DHSS, 1985) or in the white paper, The Law on Child Care and Family Services (1987, Cm 62), which preceded the 1989 Act to cast light on the reasons for the change in wording. But when Parliamentary draftsmen make changes such as this they are normally presumed to have done so deliberately and not by mistake. The second point is that the same definition of child applies throughout the 1989 Act. The 1989 Act contains a variety of powers and duties relating to children, some of them voluntary, but many of them coercive as against the child or his parents. Most of the coercive powers, to make orders relating to the care and upbringing of children, depend upon court orders. Clearly, in those cases it is for the court to determine any disputes about the age of the child. But there are some coercive powers which are operated in the first instance by other authorities, subject to bringing the case to court within a relatively short time. One of these is the power of the police, in section 46, where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm to remove a child to suitable accommodation and keep him there. This power is not infrequently used to pick up young people who are camping out in railway stations with no apparent place to go. If someone who was not a child was removed in this way, he could apply immediately for habeas corpus and the court would have to inquire into whether or not he was indeed a child. The section does not refer to a person whom the constable has reasonable cause to believe to be a child and where liberty is at stake the court would be slow to read it in that way. A similar case is perhaps more telling for our purposes because it is contained in section 25, which, like section 20, appears in Part III of the 1989 Act, entitled Local Authority Support for Children and Families. Section 25, and the regulations made under it, place limits on the circumstances in which a child who is being looked after by a local authority may be placed in accommodation provided for the purpose of restricting liberty. A child who is being looked after by a local authority means any child who is subject to a care order or a child who is provided with accommodation by a local authority under their social services functions, which include section 20(1) (see 1989 Act, section 22(1)). The regulations allow a child to be placed in secure accommodation that is, to be locked up for up to 72 hours without the authority of a court (Children (Secure Accommodation) Regulations 1991, SI 1991/1505, reg 10(1)). Again, if a person who was not a child was locked up in this way, he could apply for habeas corpus and the court would have to enquire into whether or not he was a child. There is nothing to suggest that the power can be exercised in relation to someone whom the authority reasonably believes to be a child. Against these arguments, the respondents make three main points. The first is that section 20(1) refers to a child in need. Section 105(7) provides that references to a child in need shall be construed in accordance with section 17. Section 17(10) provides that: For the purposes of this Part a child shall be taken to be in need if (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, . Thus, argues Mr Charles Bar QC for Lambeth, it cannot have been the intention of Parliament that the sorts of professional value judgment involved in assessing whether a child is in need should be made by the court. Child in need is a composite term of art so that the same should apply to the assessment of age as well as need. This argument is closely allied to a second and more fundamental argument about the respective roles of public authorities and the courts when determining whether the conditions exist for the exercise of a statutory power or duty. The court decides what the words mean and the authority decides whether the facts fit those words. Thus, in the well known case of R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309, the court decided what was meant by ordinarily resident in the criteria for entitlement to a mandatory education grant and sent the case back to the local authority to decide. Lord Scarman said this, at p 341: If a local education authority gets the law right, or, as the lawyers would put it, directs itself correctly in law, the question of fact ie has the student established the prescribed residence? is for the authority, not the court, to decide. The merits of the application are for the local education authority subject only to judicial review to ensure that the authority has proceeded according to the law. To similar effect were the observations of Lord Brightman in R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484, where the court decided whether the Housing (Homeless Persons) Act 1977 imported any requirement that the accommodation currently occupied by a household claiming to be homeless be accommodation which it was reasonable for them to continue to occupy. Having decided that it did not, Lord Brightman insisted, at p 517, that What is properly to be regarded as accommodation is a question of fact to be decided by the local authority. Third in the line of cases cited on this point were my own words in R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, 554, which are particularly pertinent because they relate to the duty of local social services authorities, under section 21(1)(a) of the National Assistance Act 1948, to provide residential accommodation for vulnerable adults who meet the criteria there laid down: it is for the local social services authority to assess whether or not those conditions are fulfilled, and if so, how the need is to be met, subject to the scrutiny of the courts on the ordinary principles of judicial review. We are not deciding where the lines of responsibility are to be drawn under the National Assistance Act 1948. We are deciding where Parliament intended that the lines be drawn under the Children Act 1989. The task in all these cases is to decide what Parliament intended. In the Shah case, it was common ground between the parties on all sides that it was for the local education authority to decide the facts. No one mounted an argument such as has been mounted in this case. We do not need to decide how it would have fared in 1983, any more than we need to speculate upon how it might be decided now. In the Puhlhofer case, the statutory duty to provide accommodation for the homeless was clearly expressed in terms that the local authority was satisfied that the criteria existed, as indeed is its successor today. Lord Brightman emphasised, at p 518, that the 1977 Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that in support of his conclusion that Parliament intended the local authority to be the judge of fact. That is not the case with the National Assistance Act 1948, which has gone through several modifications since it was first enacted, when the duty of the local authority was to prepare a scheme for accommodating the vulnerable which had then to be approved by the minister. It is not impossible that Parliament did not contemplate that such a duty would be owed to any particular individual, whereas this House has clearly held, in R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208, that the duty in section 20(1) of the 1989 Act is owed to the individual child. These days, Parliamentary draftsmen are more alive to this kind of debate. The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is in need requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and Wednesbury reasonableness there are no clear cut right or wrong answers. But the question whether a person is a child is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers. The arguments advanced by Mr Bar might have to provide an answer in cases where Parliament has not made its intentions plain. But in this case it appears to me that Parliament has done just that. In section 20(1) a clear distinction is drawn between the question whether there is a child in need within their area and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons. In section 17(10) a clear distinction is drawn between whether the person is a child and whether that child is to be taken to be in need within the meaning of the Act. Taken to be imports an element of judgment, even an element of deeming in the case of a disabled child, which Parliament may well have intended to be left to the local authority rather than the courts. I reach those conclusions on the wording of the 1989 Act and without recourse to the additional argument, advanced by Mr Timothy Straker QC for M, that child is a question of jurisdictional or precedent fact of which the ultimate arbiters are the courts rather than the public authorities involved. This doctrine does, as Ward LJ pointed out in the Court of Appeal [2008] EWCA Civ 1445, [2009] PTSR 1011, para 19, have an ancient and respectable pedigree. Historically, like the remedy of certiorari itself, it was applied to inferior courts and other judicial or quasi judicial bodies with limited jurisdiction. Thus a tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe (Bunbury v Fuller (1853) 9 Ex 111); and a rent tribunal could not give itself jurisdiction over an unfurnished letting (R v Fulham, Hammersmith and Kensington Rent Tribunal, Ex p Zerek [1951] 2 KB 1). Although of course such a body would have to inquire into the facts in order to decide whether or not to take the case, if it got the decision wrong, it could not give itself a jurisdiction which it did not have. In R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74, the same principle was applied to the power of the Home Office to remove an illegal entrant. The existence of the power of removal depended upon that fact. It was not enough that an immigration officer had reasonable grounds for believing the person to be an illegal entrant. As Lord Scarman put it, . where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied (p 110). This doctrine is not of recent origin or limited to powers relating to the liberty of the subject. But of course it still requires us to decide which questions are to be regarded as setting the limits to the jurisdiction of the public authority and which questions simply relate to the exercise of that jurisdiction. This too must be a question of statutory construction, although Wade and Forsyth on Administrative Law suggest that As a general rule, limiting conditions stated in objective terms will be treated as jurisdictional (9th ed (2004), p 257). It was for this reason that Ward LJ rejected the argument, for he regarded the threshold question in section 20 as the composite one of whether the person was a child in need. This was not a limiting condition stated in wholly objective terms so as to satisfy the Wade and Forsyth test (para 25). However, as already explained, the Act does draw a distinction between a child and a child in need and even does so in terms which suggest that they are two different kinds of question. The word child is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it. The final arguments raised against such a conclusion are of a practical kind. The only remedy available is judicial review and this is not well suited to the determination of disputed questions of fact. This is true but it can be so adapted if the need arises: see R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419. That the remedy is judicial review does not dictate the issue for the court to decide or the way in which it should do so, as the cases on jurisdictional fact illustrate. Clearly, as those cases also illustrate, the public authority, whether the childrens services authority or the UK Border Agency, has to make its own determination in the first instance and it is only if this remains disputed that the court may have to intervene. But the better the quality of the initial decision making, the less likely it is that the court will come to any different decision upon the evidence. If the other members of the Court agree with my approach to the determination of age, it does not mean that all the other judgments involved in the decision whether or not to provide services to children or to other client groups must be subject to determination by the courts. They remain governed by conventional principles. Article 6 Those conclusions make it unnecessary to reach any firm conclusions on the application of article 6 of the Convention to decisions under section 20(1) of the 1989 Act. Article 6(1) requires that in the determination of his civil rights and obligations . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. There are two questions. First, is the decision whether or not to provide accommodation under section 20(1) the determination of a civil right, so that article 6 is engaged? Secondly, if it is, what does article 6 require? Neither question is easy to answer. First, it seems to me clear that, once the qualifying criteria are established, the local authority has no discretion under section 20(1): the accommodation must be provided. The existence of the criteria is a matter of judgment, not discretion. Thus it makes sense to talk in terms of a correlative right to the accommodation, rather than simply a right to apply for it. But that does not tell us whether it is a civil right for the purpose of article 6. As Lord Hoffmann explained in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 78 et seq, the concept of a civil right in article 6 was originally intended to apply only to private rights, not rights arising in public law. But that distinction has long been abandoned and the concept of the determination of a civil right extended to many questions arising in public law. With that extension has gone some modification of what article 6 requires. Mr Nigel Giffin QC, appearing for Croydon, has helpfully divided the Strasbourg cases into two categories. In the first are those cases where the determination of a public law question is also decisive of the existence of private law rights. The obvious examples are Ringeisen v Austria (No 1) (1971) 1 EHRR 455, in which a contract for the sale of land between private citizens required the approval of the public authority; and Obermeier v Austria (1990) 13 EHRR 290, in which the dismissal of a disabled person by a private authority required the consent of a public authority; but the cases concerning the licensing of a trade or profession, such as Benthem v The Netherlands (1985) 8 EHRR 1, Albert and Le Compte v Belgium (1983) 5 EHRR 533, and Kingsley v United Kingdom (2002) 35 EHRR 177, directly affecting private contractual relationships, also fall into this category. The second category, however, is more difficult to define. Mr Giffin suggests that it consists of rights in public law which are closely analogous to rights in private law. These began with rights to contributory state benefits, which are clearly analogous to rights under private contracts of insurance (Feldbrugge v The Netherlands (1986) 8 EHRR 425). They have now been extended to rights to non contributory state benefits, which have also been recognised as rights of property for the purpose of article 1 of the First Protocol (Salesi v Italy (1993) 26 EHRR 187; Mennitto v Italy (2000) 34 EHRR 1122; Mihailov v Bulgaria, app no 52367/99, judgment of 21 July 2005) and to the distribution of compensation for forced labour during the second world war (Wos v Poland (2006) 45 EHRR 659). They have also extended to some types of public sector employment, despite the clear reluctance of many European countries (including the United Kingdom) to regard public sector employment in the same light as private sector employment (Vilho Eskelinen v Finland (2007) 45 EHRR 985). But there remain limits: taxation proceedings do not raise issues of civil rights, despite their obvious impact upon individual property rights (Ferrazzini v Italy (2001) 34 EHRR 1068); nor do immigration decisions (P v United Kingdom (1987) 54 DR 211); or decisions about state subsidies to housing associations (Woonbron Volkshuisvestingsgroep v The Netherlands, app no 47122/99, admissibility decision of 18 June 2002). So does a claim to be provided with welfare services by the state amount to a civil right for this purpose? The House of Lords, in R (Runa Begum) v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] UKHL 5, [2003] 2 AC 430, was content to assume, without deciding, that a claim to be provided with suitable accommodation under the homelessness provisions of Part VII of the Housing Act 1996 was such a right. But no Strasbourg case had yet gone so far. Mr Howell argues that the court has now done so; a number of cases from Russia, about delays in enforcing court judgments that an applicant was entitled to be provided with a flat of a certain size, have taken it for granted that this was a civil right (see eg Teteriny v Russia, app no 11931/03, judgment of 30 June 2005; Sypchenko v Russia, app no 38368/04, judgment of 1 March 2007). Enforcement only comes within article 6 because it is an intrinsic part of the trial. Thus, he argues, the underlying right to which the judgment relates must be a civil right. There is no requirement in the Strasbourg case law that the right be analogous with a right existing in private law, for the non contributory state benefits have no such equivalent. All that is required is that the right is economic in nature and personal to the individual. This he gets from, for example, Salesi v Italy, above, where the court said, of a claimant to non contributory disability allowance, she suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute (para 19). It does not have to be tradable and, he argues, like many ordinary private rights, it may well depend upon evaluative judgments rather than specific rules. On the other hand, it does not appear that there was any argument upon the point in the Russian cases and it is easy to slip into the assumption that once a right has been crystallised in a court judgment against a public authority it must amount to a civil right. In Loiseau v France, app no 46809/99, admissibility decision of 18 November 2003, which concerned a freedom of information request for sight of the applicant teachers personnel file, the court considered this a right of a private nature, firstly because it concerns an individual right of which the applicant may consider himself the holder, and secondly because the documents requested related directly and exclusively to his personal situation (para 7). Any entitlement under section 20(1) does not depend upon discretion, but it does depend upon an evaluation of some very soft criteria rather than specific rules, and it is difficult to say at what point the applicant may consider himself to be the holder of such a right. Hence, as Lord Walker of Gestingthorpe observed in Runa Begum, at para 115, if a right such as this is a civil right at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires. In Runa Begum, the House decided that the process of decision making on homelessness claims was sufficient to comply with article 6 if it applied at all. The initial decision was subject to review by another officer who had had nothing to do with the original decision and was subject to procedural rules designed to ensure a fair process. It was then subject to an appeal to the county court on conventional judicial review grounds. The reviewing officer was not independent of the local authority but she was impartial. If she did not conduct her review in an impartial way, the court could correct this. In Tsfayo v United Kingdom (2006) 48 EHRR 457, the Strasbourg court quoted extensively from both Alconbury and Runa Begum without expressing either approval or disapproval. It drew three distinctions between those cases and the determination of a claim for housing benefit by the local authoritys housing benefit review board. First, the decision on the housing benefit claim was a simply question of whether or not the claimant had good cause for a late claim; it was not an issue requiring professional judgment as the decision on homelessness in Runa Begum had been. Second, it was a question of entitlement, not depending upon the application of government policy which was properly the province of the democratically accountable bodies, as the decision on the application of planning policy in Alconbury had been. Third, the review board was not merely lacking in independence. It could not be an impartial tribunal because it consisted of councillors who were directly connected to the authority which would have to pay the benefit if it was awarded. Mr Howell argues that the social workers deciding upon section 20 claims cannot be impartial as required by article 6 because they are employed by an authority with a direct financial interest in the outcome. Although their individual professionalism is not in doubt, they may unconsciously be influenced by tacit pressures from their seniors, who are only too conscious of the many demands upon the childrens services scarce resources. These are not necessarily fully compensated by payments from the UK Border Agency. In any event it is not actual bias which matters, for that can hardly ever be proved, but the public perception of the possibility of unconscious bias (in the words of Lord Steyn in Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, at para 14). Although judicial review may be able to cure actual bias, which leads the decision maker to take irrelevant considerations into account or disregard the relevant ones, it cannot cure apparent unconscious bias of this kind. I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howells argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to childrens services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the nature of the decision (para 87, repeated in Runa Begum, para 33). If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6. Conclusion For the reasons given earlier, however, I would allow these appeals and set aside the order of the Court of Appeal. The result is that if live issues remain about the age of a person seeking accommodation under section 20(1) of the 1989 Act, then the court will have to determine where the truth lies on the evidence available. It is not, however, entirely clear what relief the appellants now seek and so I would invite submissions upon this, and upon the question of costs, within fourteen days. LORD HOPE This case raises two distinct issues of general public importance. Their importance extends well beyond the facts of the two cases that are before us. On the one hand there is the question whether the word child in section 20(1) of the Children Act 1989 means, as the Court of Appeal held, a person whom the local authority has reasonable grounds for believing to be a child: [2008] EWCA Civ 1445; [2009] PTSR 1011, paras 30 31; or whether it raises a question of precedent fact which must be determined, if necessary, by a court. On the other there is the question whether a decision that the local authority makes as to whether or not to provide accommodation for a child in need under section 20(1) is a determination of a civil right within the meaning of article 6(1) of the European Convention on Human Rights. As to the first issue, it has wider implications because the appellants are both asylum seekers. The immediate question is how it is to be determined whether the appellants are under the age of eighteen and thus entitled to be considered for local authority support under Part III of the Children Act 1989. But, as the Secretary of State points out, an asylum seekers age will have implications too for the way in which his or her application for asylum will be treated. This is because the Secretary of States policy on returning unaccompanied minors usually leads to those whom he considers to be under the age of 18 being given discretionary leave to remain. Age, as such, is not a determinant as to a persons immigration status. But it is relevant to the way the Secretary of State discharges his immigration and asylum functions and the exercise of his powers and duties to provide asylum support. In practice, in disputed age cases, the Secretary of State follows the assessment that has been arrived at by the local authority. As a result any challenges to the lawfulness of the local authoritys assessment are likely to affect the way that the Secretary of State acts in reliance on the assessment. His concern is that the appellant As contention that the question whether or not a person is a child is, in the event of challenge, to be determined by a court will result in an inappropriate judicialisation of the process. The suggestion is that this will slow down the process and make it harder to administer. As to the second, a holding that the local authoritys decision as to whether or not to provide accommodation under section 20(1) of the 1989 Act amounted to the determination of a civil right would have far reaching implications. This because the right which is guaranteed by article 6(1) is to a decision by an independent and impartial tribunal established by law. As the House recognised in Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] UKHL 5, [2003] 2 AC 430, it cannot plausibly be argued that the employees of the local authority who take decisions of this kind on its behalf are independent of the authority: see Lord Bingham of Cornhill, para 3, and Lord Hoffmann, para 27. The question then is what must be done if the articles requirements are to be satisfied. In Runa Begum the House held that the county courts appellate jurisdiction under section 204 of the Housing Act 1996, exercising the normal judicial review jurisdiction of the High Court, was sufficient to satisfy the requirements of the article. But, although the housing officer in that case could not be regarded as independent, no question was raised as to her impartiality. In this case the impartiality of the social workers is challenged. This in turn raises questions as to the intensity of any judicial review that must be undertaken if the requirements of article 6(1) are to be satisfied. This will have implications as to the way decisions are taken in the provision of a wide range of public services. The facts of these appeals and the general background to the issues they raise have been summarised by Lady Hale. I accept her valuable description of them with gratitude. I wish to add only a few words on the first issue, as I am in full agreement with what she says. As for the second, I agree with her that it follows from our decision on the first issue that it is unnecessary to reach any firm conclusions on it. But I think that it is reasonably clear from the present state of the authorities how it should be answered. In view of its general importance I should like to explain the answer that I would give to it. The section 20(1) issue It seems to me that the question whether or not a person is a child for the purposes of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court. There is no denying the difficulties that the social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18. Reliable documentary evidence is almost always lacking in such cases. So the process has to be one of assessment. This involves the application of judgment on a variety of factors, as Stanley Burnton J recognised in R (B) v Merton London Borough Council [2003] EWHC Admin 1689, [2003] 4 All ER 280, para 37. But the question is not whether the person can properly be described as a child. Section 105(1) of the Act provides: In this Act child means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen. The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court. In the Court of Appeal and in the argument before us, reference was made to the rule that where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will, if called upon to do so in a case of dispute, decide whether the requirement has been satisfied: R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74, 110, per Lord Scarman. On the other hand, as Sir Thomas Bingham MR observed in R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768, 785, where the question is one that is to be determined by the executive itself, its determinations will be susceptible to challenge only on Wednesbury principles: R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514. In order to decide into which class of judgment the case falls one must, of course, first construe the statutory language used and the scheme of the legislation. If, as the respondents contend, and Ward LJ in the Court of Appeal, para 25, accepted, the phrase child in need which sets the threshold for the provision of accommodation under section 20 must be taken as a whole, the judgment that must be made will fall into the latter category. But the definition of child in section 105(1) applies to the Act as a whole, without qualification or exception. The question whether the child is in need is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the persons age, which is an objective fact. The scheme of the Act shows that it was not Parliaments intention to leave this matter to the judgment of the local authority. As for the practical consequences, the process begins with the carrying out of an assessment of the persons age by the social worker. Resort to the court will only be necessary in the event of a challenge to that assessment. So I do not accept that our conclusion will inevitably result in an inappropriate judicialisation of the process. It may, of course, require a judicial decision in some cases. But I would hope that the fact that the final decision rests with the court will assist in reducing the number of challenges. The initial decision taker must appreciate that no margin of discretion is enjoyed by the local authority on this issue. But the issue is not to be determined by a consideration of issues of policy or by a view as to whether resort to a decision by the court in such cases is inappropriate. It depends entirely on the meaning of the statute. We must construe the Act as we find it. As I have said, when the subsection is properly construed in the light of what section 105(1) provides, the question admits of only one answer. The article 6(1) issue Much of the background to the questions which this issue raises was explored in Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430. With that advantage we can examine the issue from the point where that decision left it. On the other hand I would be very reluctant to take anything away from the carefully balanced conclusion that the House reached in that case unless driven to do so by subsequent guidance from Strasbourg. As Lord Bingham explained in para 5, that case exposed more clearly than any earlier case had done the interrelation between the article 6(1) concept of civil rights on the one hand and the article 6(1) requirement of an independent and impartial tribunal on the other. The narrower the interpretation that is given to civil rights, the greater the need to insist on review by a judicial tribunal exercising full powers. Conversely, the more elastic the interpretation that is given to the expression, the more flexible must be the approach to the requirement if over judicialisation of welfare schemes is to be avoided. What the House did in that case was to assume, without deciding, that Runa Begums domestic right was also a civil right and, having made that assumption, to hold that the absence of a full fact finding jurisdiction in the tribunal from which an appeal lay from the administrative decision making body did not disqualify the tribunal for the purposes of article 6(1): Lord Bingham, paras 6, 11; Lord Hoffmann, paras 58, 70. In this case, having held that it was for the social workers to decide the age of the applicant, the Court of Appeal held that judicial review of their decision was sufficient to satisfy the requirements of article 6(1): [2008] EWCA Civ 1445, [2009] PTSR 1011, para 84. Although he recognised that, having reached that view, it was not necessary for him to do so, Ward LJ went further and held that the right of accommodation given by section 20(1) was a right but that it could not be classified as a civil right within the meaning of article 6(1) because too much discretion was given to the local authority to decide what kind of accommodation is to be provided: para 59. Maurice Kay LJ and Sir John Chadwick expressed some hesitation as to whether this was a right at all: paras 92, 93. The effect of our decision that the question whether the applicant is or is not under eighteen is an objective fact which must ultimately be one for the court is that the issue will, in the event of a dispute, be decided by an independent and impartial tribunal with powers which fully satisfy the requirements of article 6(1). The question whether the applicant is a child in need must then be for the social worker to deal with. But it is very hard to see how an unaccompanied child who is an asylum seeker could be otherwise than in need. This is not an issue that has been raised in these appeals. In this situation it is open to us to regard the article 6(1) issue as academic and to say no more about it. But the questions were fully and carefully argued before us, and they are of general public importance. We are as well informed about the present state of the jurisprudence of the Strasbourg court as we can be. With that advantage, I would venture these observations. The most significant development since the decision in the Runa Begum case is the decision of the Strasbourg court in Tsfayo v United Kingdom (2006) 48 EHRR 457. The applicant in that case had failed to renew her application for housing and council tax benefit. After taking advice she submitted a prospective claim and a backdated claim for both types of benefit. The council accepted the prospective claim but rejected the backdated one on the ground that the applicant had failed to show good cause why she had not claimed these benefits earlier. The councils housing benefit and council tax benefit review board rejected her appeal against this decision. Her complaint was that the board was not an independent and impartial tribunal, contrary to article 6(1). The court held that disputes about entitlement to social security and welfare benefits generally fell within the scope of article 6(1). It agreed with the parties that the applicants claim concerned the determination of her civil rights, that article 6(1) applied and that she had a right to a fair hearing before an independent and impartial tribunal: para 40. It held that the requirements of article 6(1) had been violated. The board, which included five councillors from the local authority which would be required to pay the benefit, lacked independence and the safeguards built into its procedure were not adequate to overcome this fundamental lack of objectivity. The review board had power to quash the councils decision. But it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicants credibility: paras 47, 48. The question whether the claim concerned the determination of the applicants civil rights was not disputed. This was not surprising, as the case fell within the mainstream of cases where the issue was one as to the entitlement to an amount of benefit that was not in the discretion of the public authority. This is shown by the cases referred to in a footnote to para 40: Salesi v Italy (1993) 26 EHRR 187, para 19; Schuler Zgraggen v Switzerland (1993) 16 EHRR 405, para 46; Mennitto v Italy (2000) 34 EHRR 1122, para 28. As Lord Walker of Gestingthorpe said in Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430, para 112, these cases, which started with Feldbrugge v The Netherlands (1986) 8 EHRR 425, indicate that article 6(1) is likely to be engaged when the applicant has public law rights which are of a personal and economic nature and do not involve any large measure of official discretion. As the court put in Salesi v Italy, para 19, the applicant was claiming an individual, economic right flowing from specific rules laid down in a statute. In Mennitto v Italy, para 23, the court said that the outcome of the proceedings must be directly decisive for the right in question. In Tsfayo v United Kingdom the court directed its attention to the decision making process. It quoted, with approval, Lord Binghams description of the interrelation between the article 6(1) concept of civil rights and the requirement for an independent and impartial tribunal: para 31. The case was decided against the United Kingdom because, in contrast to Runa Begum and Bryan v United Kingdom (1995) 21 EHRR 342 where the issues to be decided required a measure of professional knowledge or experience and the exercise of discretion pursuant to wider policy aims, the review board in Ms Tsfayos case was deciding a simple question of fact, namely whether there was good cause for her delay in making the claim. So far as it goes, this decision supports the view that in cases which concern the provision of welfare services of the nature at issue in these appeals judicial review of the kind contemplated in Runa Begum will meet the requirements of article 6(1). As the court explained in para 46: No specialist expertise was required to determine this issue, which is, under the new system, determined by a non specialist tribunal. Nor, unlike the cases referred to [Bryan and Runa Begum], can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take. I read this passage as an endorsement of the point that Lord Bingham made in Runa Begum, para 5, that if an elastic interpretation is given to the article 6(1) concept of civil rights flexibility must also be given to the procedural requirements of that article if over judicialisation of the administrative welfare schemes is to be avoided. But it is important, too, to recognise that in Tsfayo, as in Runa Begum, the question whether, and if so at what point, administrative welfare schemes fall outside the scope of article 6(1) altogether was not tested. Tsfayo, as I have said, fell within the mainstream of cases about social security and welfare benefits. In Runa Begum the House preferred not to take a decision on this issue. There are, however, a number of straws in the wind that have been generated by the decisions from Strasbourg since Runa Begum that suggest that a distinction can now be made between the class of social security and welfare benefits that is of the kind exemplified by Salesi v Italy and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority. The phrase civil rights is, of course, an autonomous concept: eg Woobron Volkshuisvestingsgroep v The Netherlands, application no 47122/99), 18 June 2002 (unreported). But it does convey the idea of what, in Stec v United Kingdom (2005) 41 EHRR SE18, para 48, the Strasbourg court referred to as an assertable right. In that paragraph, having declared that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions, and in para 49 that it is in the interests of the Convention as a whole that the autonomous concept of possession in article 1 of Protocol No 1 should be interpreted in a way which is consistent with the concept of pecuniary rights in article 6(1), the court said, at para 51: In the modern, democratic state, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid subject to the fulfilment of the conditions of eligibility as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding article 1 of Protocol No 1 to be applicable. The courts references in Loiseau v France application no 46809/99, 18 November 2003 (unreported), para 7, to a private right which can be said, at least on arguable grounds, to be recognised under domestic law and to an individual right of which the applicant may consider himself the holder are consistent with this approach. So too are the references in Mennitto v Italy (2002) 34 EHRR 1122, para 23, to a right which can be said, at least on arguable grounds, to be recognised under domestic law, where the court added: The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. [emphasis added] Cases where the award of benefit is dependent upon a series of evaluative judgments as to whether the statutory criteria are satisfied and, if so, how the need for it as assessed ought to be met do not answer to that description. The exact limits of the autonomous concept remain elusive. One can be confident that cases where the relationship between the beneficiary and the public authority is of a public law character, as in Woodbron v The Netherlands, where the role of the applicant associations in regard to the construction and maintenance of public housing was of a typically general interest character, fall outside its scope. Mr Howell QC submitted that there is no distinction to be drawn between the forms in which welfare benefits may be provided. But none of the Strasbourg authorities go that far, and the carefully worded passages from Loiseau v France and Stec v United Kingdom to which I have referred seem to me to contradict his proposition. The series of cases about the enforcement of judgments made by the courts about social housing in Russia to which he referred, of which the latest is Nagovitsyn v Russia application no 6859/02, 24 January 2008 (not reported), offer no assistance as the question whether a duty to provide social housing gives rise to a civil right was not argued. For these reasons I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a civil right within the meaning of article 6(1) of the Convention. LORD SCOTT I have found Lady Hales discussion of the issues raised illuminating and her reasons for the conclusions she has expressed convincing. I cannot usefully add anything or improve upon those reasons and gratefully associate myself with them. I would, therefore, for the reasons she has given, allow these appeals and adopt the suggestion she has made in the last sentence of her opinion. LORD WALKER I am in full agreement with the judgment of Lady Hale. In his judgment Lord Hope gives powerful reasons for concluding that a local authoritys duty under section 20(1) of the Children Act 1989 is not a civil right for the purposes of Article 6(1). But the Court does not have to decide that point in order to dispose of this appeal. The Strasbourg jurisprudence is still developing. I would prefer to leave the point open, while acknowledging the force of Lord Hopes reasoning. LORD NEUBERGER For the reasons given by Lady Hale, I too would allow this appeal. |
The appellant is Nat Gordon Fraser who went to trial in January 2003 at the High Court of Justiciary in Edinburgh charged with the murder of his wife Arlene Fraser, who disappeared from her home at 2 Smith Street, New Elgin on 28 April 1998. On 29 January 2003 he was found guilty of her murder and sentenced to life imprisonment, with a punishment part of 25 years. By a note of appeal which was lodged on 18 December 2003 he appealed against his conviction and sentence. He was granted leave to appeal. The indictment on which the appellant went to trial included an allegation that, after the murder and with intent to defeat the ends of justice, he did (iii) on 7 May 1998 at said 2 Smith Street, place a wedding ring, engagement ring and eternity ring belonging to said Arlene Fraser in said house. Although the Advocate Depute withdrew this charge at the end of the Crown case, he relied on the evidence that the rings had been discovered in the house on 7 May 1998 as a crucial part of the circumstantial evidence against the appellant that he had arranged for his wife to be killed. In his address to the jury he said that the discovery of the rings was a most compelling piece of evidence. He invited the jury to conclude that eight or nine days after Arlene Frasers death the appellant had removed the rings from her dead body, taken them to the house and placed them in the bathroom to make it look as though she had decided to walk away from the life that she had had there. He described the return of the rings as the cornerstone of the case against the appellant, for which he had provided no explanation. The trial judge directed the jury that, if they reached the view that they were not prepared to hold that it was the appellant who placed the rings in the bathroom on 7 May, it would not be open to them to convict the appellant. The case was presented on the assumption, for which unchallenged evidence had been led, that the rings were not in the bathroom when Arlene Fraser disappeared. But it came to the notice of Crown Office after the appeal was lodged that, when he was precognosced by a Crown precognition officer on 3 July 2002, PC Neil Lynch had stated that he had visited the house on three occasions during the night of 28 and 29 April 1998 and that on the final visit he was accompanied by WPC Julie Clark. He said that on the night of 28 April and the morning of 29 April he had seen jewellery, including rings, in the house and that before the official search began he had thought he saw bracelets and rings in the bathroom which looked like a wedding ring, an engagement ring or an eternity ring. This information had not been recorded in PC Lynchs notebook and it was not included in any statement provided by him prior to the trial. It was not provided prior to or during the trial to the Advocate Depute, nor was it provided to the appellants representatives. PC Lynch and WPC Clark had not been precognosced by the defence in the course of their preparations for the trial. Inquiries were then instigated, in the course of which a further precognition was taken from PC Lynch and WPC Clark was also precognosced. When he was precognosced on 8 February 2006 PC Lynch said that he first attended the house with WPC Clark around 10.30 pm to 11.00 pm on 28 April 1998 and that during this visit he saw jewellery in the bathroom. His recollection was that there were two or three rings there and a chain necklace, or maybe two. The rings were wedding, engagement or eternity type rings. When she was precognosced on 2 March 2006 WPC Clark said that either on the night of 28 April or in the early hours of 29 April she saw jewellery in the bathroom. There were at least two finger rings and a chain, and one of the rings could have been a ladys wedding ring or an eternity ring. This information had not been recorded in her notebook and it was not included in any statement provided by her before the trial. The information which had been obtained on precognition from PC Lynch and WPC Clark was disclosed to the appellant on 8 March 2006. On 11 March 2006 a statement was issued by the Crown Office and Procurator Fiscal Service in which it was said that the Lord Advocate regarded it as a matter of serious concern that this evidence was not made available to the defence before the trial. The Area Procurator Fiscal for Glasgow, Catherine Dyer, and the Deputy Chief Constable of Strathclyde, Richard Gray, were asked to carry out a full investigation. They reported on 30 October 2006. In the course of their investigation they interviewed the Advocate Depute, now the Hon Lord Turnbull. He said that he thought at an early stage of his involvement in the case that the rings were the key piece of evidence, and that the information in PC Lynchs precognition was so inconsistent with his thinking that if it had come to light during the trial it would have had to have been deserted. In the light of the information disclosed by the Crown the appellant lodged additional grounds of appeal in May 2006. These were followed by revised additional grounds in February 2007, in which it was submitted that there had been a miscarriage of justice because the evidence of PC Lynch and WPC Clark was not heard at the trial and because the Crown had failed to disclose the information that PC Lynch had provided when he was precognosced on 3 July 2002. The appeal was set down for hearing by the Appeal Court (the Lord Justice Clerk (Lord Gill), Lord Osborne and Lord Johnston) in November 2007. On 13 November 2007, which was the first day of the appeal hearing, the appellant moved the Appeal Court to allow an additional ground of appeal and a devolution minute, which was in similar terms, to be received. In the devolution minute it was stated that the appellant intended to raise a devolution issue on the following grounds: i. That the Crown was in possession of information from Police Constable Neil Lynch, regarding the presence of Arlene Frasers rings in the bathroom at the locus at the time of her disappearance, prior to and at the time of the trial of the minuter. ii. That said information was material evidence, which in the context of the trial, tended to undermine the Crown case and would have been of material assistance to the proper preparation or presentation of the minuters defence. iii. That the Crown was under a duty to disclose to the defence any information which undermined its case. iv. That, in breach of its duty, the Crown failed to disclose said information to the defence, thereby infringing the minuters rights under article 6(1) of the Convention. v. That, irrespective of its duty to disclose said information, the Crown was under a duty to present the case against the minuter on an accurate premise, and in a manner which was consistent with the minuters right to a fair trial. In making the cornerstone of its case the reappearance of Arlene Frasers rings on 7 May 1998 and incriminatory inferences to be drawn from that fact in circumstances where it knew or ought to have known of a body of evidence which would render the invitation to a jury to draw such inferences inappropriate, the Crown infringed the minuters rights in terms of article 6(1) of the Convention. vi. That accordingly the conviction should be quashed. The Appeal Court refused the motion for the additional ground of appeal and the devolution minute to be received. The reasons that it gave for this decision were that they came too late, that sufficient cause had not been shown and that the matters sought to be raised were adequately covered by the existing grounds of appeal. In the course of the hearing, which occupied a total of 13 days, the appellants counsel restricted his argument to the question whether there had been a miscarriage of justice on the ground of fresh evidence within the meaning of section 106 of the Criminal Procedure (Scotland) Act 1995, and on the ground of non-disclosure which he accepted was in effect a duplication of the first ground. The non-disclosure ground of appeal was therefore treated in the same way as the fresh evidence appeal. On 6 May 2008 the Appeal Court refused the appeal against conviction and continued the appeal against sentence to a date to be afterwards fixed: [2008] HCJAC 26, 2008 SCCR 407. The appeal against sentence was subsequently abandoned. The appellant then sought leave of the Appeal Court to appeal to the Judicial Committee of the Privy Council against the Appeal Courts refusal to allow the devolution minute to be received. Having heard argument on 31 October 2008, the Appeal Court (the Lord Justice Clerk, Lord Osborne and Lord Wheatley) refused the application for leave to appeal on 24 March 2009 as incompetent: [2009] HCJAC 27, 2009 SCCR 500. Delivering the opinion of the court, Lord Osborne said in para 13 that the identification of the devolution issue depended on the content of the devolution minute which had been tendered and rejected on 13 November 2007. It follows from that that, in any appeal for which leave might be granted by us, the appellant would seek to canvass exactly the same issues as were canvassed in his appeal under section 106 of the 1995 Act, but this time before the Judicial Committee of the Privy Council. What decision they might or might not reach in any such appeal can only be a matter of conjecture at this stage. However, what is clear is that the allowance of leave for such an appeal as this would authorise a procedure under which the Judicial Committee, in the circumstances of this case, would, quite simply, review the merits of the decision reached by this court on 6 May 2008. Whatever was contemplated by Parliament in enacting paragraphs 1(c) and 13 of Schedule 6 to the Scotland Act 1998, we do not think that it was intended to achieve such a result as that. Had it been the intention of Parliament to introduce, for the first time, a right of appeal to the Privy Council against the merits of decisions by the High Court of Justiciary determining appeals to it under section 106 of the 1995 Act, we are of the opinion that it would have made that intention clear. That has not been done. The appellant then lodged a petition with the Judicial Committee of the Privy Council in which he sought special leave of the Judicial Committee under para 13 of Schedule 6 to the Scotland Act 1998 to appeal against the determination by the Appeal Court of the devolution issue which he had raised in the devolution minute which he had tendered on 13 November 2007. Consideration of his petition for special leave was deferred pending the determination by the Supreme Court (which by now had inherited the jurisdiction of the Judicial Committee in relation to devolution issues under section 40(4)(b) of and Schedule 9 to the Constitutional Reform Act 2005) of the appeals in Allison v HM Advocate [2010] UKSC 6, 2010 SLT 261 and McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266. On 21 April 2010 the appellant lodged a supplementary submission in support of his application for special leave to appeal. On 20 May 2010 the Court granted his application for special leave. The devolution issue As I recently sought to emphasise, this court must always be careful to bear in mind the fact that the High Court of Justiciary is the court of last resort in all criminal matters in Scotland: see section 124(2) of the Criminal Procedure (Scotland) Act 1995; McInnes v HM Advocate 2010 SLT 266, para 5. Our appellate jurisdiction in relation to its decisions extends only to a consideration of a devolution issue which has been determined by two or more judges of that court: para 13 of Schedule 6 to the Scotland Act 1998. It goes no wider than that. If, therefore, the effect of the appellants application for special leave was that we were simply being asked to review the determination under section 106 of the 1995 Act of his appeal by the Appeal Court, as Lord Osborne indicated at 2009 SCCR 500, para 13, we would have been bound to refuse the application for special leave. The appellants application for special leave was granted by this court for two reasons. The first was that the decision by the Appeal Court to refuse to allow the devolution issue to be received amounted to a determination of that issue for the purposes of para 13 of Schedule 6 to the Scotland Act 1998: see McDonald v HM Advocate [2008] UKPC 46, 2009 SLT 993; Allison v HM Advocate [2010] UKSC 6, 2010 SLT 261, para 6 per Lord Rodger; Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125, [2010] 1 WLR 2601, para 11. The second was that it appeared to this court, applying the tests set out in McInnes v HM Advocate, 2010 SLT 266, paras 19-20 and 28-30, that it was seriously arguable that material had been withheld from the appellant which ought to have been disclosed to him and his advisers with the consequence the appellant did not receive a fair trial and that the unfairness had not been remedied by the approach taken by the Appeal Court. The tests set out in McInnes fall into two parts which, as I said in para 19, must be considered and applied separately. First, there is the test that is to be applied in order to decide whether the material which was withheld from the defence is material which ought to have been disclosed to it. The test here is whether the material might have materially weakened the Crown case or might materially have strengthened the case for the defence. As was explained in HM Advocate v Murtagh [2009] UKPC 35, 2010 SC (PC) 39, [2010] 3 WLR 816, para 11, this test was identified by Lord Justice General Rodger in McLeod v HM Advocate (No 2) 1998 JC 67. He said that the duty of disclosure was an aspect of the role of the Crown as it had been understood since Slater v HM Advocate 1928 JC 94; see also Downie v HM Advocate 1952 JC 37, p 40 per Lord Justice General Cooper; Smith v HM Advocate 1952 JC 66, p 72 per Lord Justice Clerk Thomson. As Lord Rodger said in McLeod at p 79F-G, our system of criminal procedure proceeds on the basis that the Crown have a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused. This test is well settled in Scots law and in the jurisprudence of this court: see Sinclair v HM Advocate 2005 SC (PC) 28, para 33; Allison v HM Advocate 2010 SLT 261, paras 25-28. There are, no doubt, various ways of expressing it. In his Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland (Scottish Government, Edinburgh, 2007), para 5.46 Lord Coulsfield recommended that it should be the duty of the prosecutor to disclose to the defence all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it. But the way it was set out in McInnes, paras 19 and 28, can be taken to be the definitive way of expressing the test. Then there is the test which is set out in McInnes, paras 20, 24 and 30. It is directed to the consequences of the violation. A failure by the Lord Advocate to disclose to the defence material which, applying the first test, ought to have been disclosed to it is incompatible with the accuseds article 6 Convention right to a fair trial: Rowe and Davis v United Kingdom (2000) 30 EHRR 1, para 60; Edwards v United Kingdom (1992) 15 EHRR 417, para 36; Dowsett v United Kingdom (2003) 38 EHRR 845, paras 42, 43. At this stage the significance and consequences of the violation must be assessed. The question is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair. It was in order to indicate more precisely what fair means in this context that the court went on to give this further guidance. The test that is to be applied to determine this issue is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence. The decision of the Appeal Court (Lady Paton, Lord Hardie and Lady 00000000Smith) in Hay v HM Advocate [2010] HCJAC 125, 2011 SLT 293 provides a good illustration of a case where the application of that test may lead to the refusal of an appeal. The question in this appeal, therefore, is whether the way the Appeal Court dealt with the non-disclosure aspects of the appeal satisfies the requirements of these two tests. This is not an easy question to answer as, having refused to entertain the appellants devolution minute, the Appeal Court dealt with all aspects of the appeal as a fresh evidence appeal which was regulated by section 106 of the 1995 Act: 2008 SCCR 407, para 131. The Lord Justice Clerk explained his approach in para 193 in this way: Since there is no devolution issue in this appeal, I need not consider the points that the advocate depute raised about the test in appeals to the Privy Council. This appeal falls to be dealt with solely as an appeal under section 106 based on the contention that there has been a miscarriage of justice. If I am right, the test set by Lord Justice General Emslie in Cameron v HM Advocate [1991 JC 252, at 262], and followed by this court for over 20 years, applies to both grounds of appeal. The approach which the Appeal Court took requires this court to compare the tests set out in McInnes with those which are applied to appeals under section 106 in order to determine whether, having regard to the way the Appeal Court deal with the case, there is any difference between them. If we can be satisfied that there is no material difference between the tests that the Appeal Court actually applied and the McInnes tests, that will be an end to the case. That is because, as I said in McInnes, para 18, the jurisdiction of this court does not extend to the question whether, having identified the right tests, they were applied correctly by the Appeal Court. But we cannot avoid looking at what the Appeal Court did to see whether the tests that it applied were so similar to what the McInnes tests require that it made no difference whether the appeal was decided as a fresh evidence appeal or under the Convention. Section 106 of the 1995 Act In McInnes, para 5, I said that it was not for this court to comment on the test applied by the Appeal Court in fresh evidence appeals which do not raise a devolution issue. This must be so, as this court has no jurisdiction in appeals of that kind. But in this case, as it is an appeal in which a devolution issue has been raised but which was determined by the Appeal Court solely by applying Lord Justice General Emslies test as if it were a fresh evidence appeal only, it is not possible to be so reticent. A comparison of the kind that is required in this case cannot be carried out without first analysing that test and the tests that sections 106(3) and (3A) of the 1995 Act, as substituted by section 17 of the Crime and Punishment (Scotland) Act 1997, lay down. Section 106 must, of course, be read and given effect in a way that is compatible with the Convention rights, so far as it is possible to do so: section 3(1) of the Human Rights Act 1998. The relevant parts of the substituted section 106(3) are in these terms: (3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and the jurys having returned a verdict which no reasonable jury, properly directed, could have returned. (3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard. Subsection (3B) allows the court to admit evidence which was inadmissible at the time of the trial but which has become admissible under the law that is current at the time of the appeal. Subsections (3C) and (3D) deal with the situation where a witness who gave evidence at the trial wishes to change his story. As the Appeal Court said at 2008 SCCR 407, para 193, the test to be applied to an appeal on the ground of fresh evidence was laid down by Lord Justice General Emslie in Cameron v HM Advocate 1991 JC 252; see also Williamson v HM Advocate 1988 SCCR 56 at p 59. It is first necessary for the court to find that the statutory tests set out in the amended section 106 are satisfied: that the additional evidence was evidence that was not heard at the original proceedings, and that there is a reasonable explanation of why it was not so heard. If it so finds, the court must then direct its attention to the additional test which Lord Justice General Emslie laid down in Cameron. He distinguished between cases where the court is satisfied that, if the original jury had heard the new evidence, its significance was such that the jury would have been bound to acquit and cases where the court cannot be so satisfied. It was with regard to cases of the latter kind that he said at p 262: if the court is to find that a miscarriage of justice had occurred in an appeal such as this, it must be satisfied that the additional evidence is at least capable of being described as important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jurys determination of a critical issue at the trial. If the court is so satisfied, it will be open to it to hold that a conviction returned in ignorance of the existence of that evidence represents a miscarriage of justice and it may exercise its power to authorise the bringing of a new prosecution. This test can, for the purposes of a comparison with the tests set out in McInnes, be divided into two parts. First, there is what may be described as the threshold test: assuming that this is evidence that satisfies the statutory requirement that it was not heard at the original proceedings and there is a reasonable explanation of why it was not so heard, is it at least capable of being described as important and reliable evidence which would have been bound, or at least likely to have had a material bearing upon, or a material part to play in, the jurys determination of a critical issue at the trial? The comparison here is with the test for disclosure that is set out in McInnes, para 19. Then there is what may be described as the consequences test, introduced by the words it will be open to it to hold: does a conviction returned in ignorance of the existence of that evidence represent a miscarriage of justice? The comparison here is with the test as to whether the trial was fair that is set out in McInnes, para 20. This analysis fits with the approach that was taken to the Cameron test by the Lord Justice Clerk at 2008 SCCR 407, paras 132 and 133. An alternative reading of it would be to read the words which I have quoted as setting out a threshold test which leads inevitably, if satisfied, to the conclusion that the verdict of the jury, reached in ignorance of the existence of the additional evidence, must be regarded as a miscarriage of justice. On that view it will be enough to show that the test set out in the preceding words has been met. In practice there may be little to choose between these two approaches. For present purposes, however, I think that it is preferable to follow the Lord Justice Clerks approach. It has the merit of giving weight to the words it will be open to it to hold, which suggest that the court should regard the reference to a miscarriage of justice in the concluding words of the Cameron test as raising a question that ought to be considered separately. The tests compared I take first what I have called the threshold test. The context for its formulation by Lord Justice General Emslie, in the opinion which he delivered in Cameron on 23 October 1987, was the introduction of new statutory provisions governing appeals on indictment by section 33 of and Schedule 2 to the Criminal Justice (Scotland) Act 1980. In its original form section 228 of the Criminal Procedure (Scotland) Act 1975 provided simply that a person convicted might appeal to the High Court against his conviction on any ground of appeal which involved a question of law alone or, with the leave of the High Court or upon the certificate of the trial judge that it was a fit case for appeal, on any ground of appeal which involved a question of fact or on a question of mixed law and fact on any other ground which appeared to the High Court or the trial judge to be a sufficient ground of appeal. The statute did not refer to the possibility of relying on additional evidence, and the court had no power to allow a new trial. In Gallacher v HM Advocate 1951 JC 38 it was held that the question for the court in such an appeal was whether it was reasonably satisfied that, if the additional evidence was before the jury, it would not have convicted: see also Elliott v HM Advocate 1995 JC 95, 104-105 where the history of the statutory provisions was reviewed. The 1980 amendments introduced for the first time a statutory test for an appeal based on additional evidence, and it also conferred on the court a power to set aside a verdict and to authorise a new prosecution. In the light of these amendments the test set out in Gallacher was no longer appropriate: Green v HM Advocate 1983 SCCR 42; Cameron v HM Advocate 1991 JC 251, 260. Lord Justice General Emslies threshold test, as he explained at 1991 JC 251, 262, was intended to define the approach which the court must take for all cases where the appellant sought to rely on additional evidence. He had already observed at p 262 that setting aside the verdict of a jury was no light matter: see also Megrahi v HM Advocate 2002 JC 99, para 219 where Lord Justice General Cullen repeated this observation in his summary of the Cameron test. The availability of a right of appeal based on additional evidence was to be understood against that background. So Lord Justice General Emslie introduced an additional, and quite stringent, consequences test which was not to be found in the words of the statute. It remains the test which the High Court applies in these cases, as the Lord Justice Clerk explained in his opinion 2008 SCCR 407, para 193. The threshold test as to whether the material on which the appellant seeks to rely in a non-disclosure case is admissible for the purposes of an appeal based on a violation of his article 6 Convention right is different from the threshold test which section 106(3)(a) and subsection (3A) lay down for an appeal that is to be founded on additional evidence. It also differs from the additional threshold test set out in Cameron which was, of course, not designed for use in cases where the appellants ground of appeal is that there has been a violation of his article 6 Convention right to a fair trial because the Crown failed to disclose material which, applying the test in McInnes, para 19, ought to have been disclosed to the defence. The Cameron test asks whether the disclosed evidence would have been likely to have had a material bearing upon the jurys determination of a critical issue at the trial. That is a more stringent and more narrowly defined test than the McInnes test, which asks whether the material might have materially weakened the Crown case or materially strengthened the case for the defence. Then there is what I have called the consequences test in Cameron: was the conviction which was returned in ignorance of the existence of the additional evidence a miscarriage of justice? Is this a different test from that set out in McInnes, para 20 of which asks whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict? In answering this question we must bear in mind the rule as to interpretation that section 3 of the Human Rights Act 1998 lays down. The words are obviously quite different. But are the tests which they describe, in essence, the same test? Section 106(3), like its predecessors, uses the phrase miscarriage of justice to identify the test which all appeals against conviction must satisfy. But the statutory formula does not, and never has, provided a definition of what a miscarriage of justice is in law. In his commentary on the Appeal Courts decision in 2008 SCCR 407, 465, para 4, Sir Gerald Gordon observed that just what is meant by a miscarriage of justice has always been a problem. In R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1, para 9 Lord Bingham of Cornhill said that it is an expression which, although very familiar, has no settled meaning. So the statute leaves it to the court to adapt these words to the circumstances of each case. The formula that was used in McInnes, para 20, was designed to provide a test as to whether, in cases where it is alleged that there was a violation of the appellants article 6 Convention right, the trial was or was not fair. As was pointed out in that paragraph, in Kelly v HM Advocate [2005] HCJAC 126, 2006 SCCR 9, para 35 Lady Cosgrove said that, if the trial was found nevertheless to have been fair, there would in consequence have been no miscarriage of justice. The two expressions were seen by her to have, in essence, the same meaning. Section 3 of the Human Rights Act 1998 supports this approach. Section 106(3) ought to be read and given effect in a way which is compatible with the article 6 Convention right to a fair trial. In Coubroughs Executrix v HM Advocate [2010] HCJAC 32, 2010 SLT 755, para 47 the Appeal Court (Lords Carloway, Bonomy and Nimmo Smith) said that, if it had had to be satisfied that a miscarriage of justice had occurred in consequence of a misdirection by the trial judge, the court would have applied the test set out in McInnes: In carrying out that exercise, it would have applied the test of whether there was a real possibility that, had the direction been faultless, a different verdict would have been returned. In this context, the court must look at whether a different verdict would have been returned by the particular jury that heard the case (McInnes v HM Advocate, Lord Hope at para 20 and para 24, Lord Brown at para 35, Lord Kerr concurring with both at para 41) rather than a hypothetical modern jury hearing all the evidence anew (Lord Rodger at para 30; cf Lord Walker who agreed with both Lord Hope and Lord Rodger). In Black v HM Advocate [2010] HCJAC 126, 2011 SLT 287 a differently constituted Appeal Court (Lords Osborne and Turnbull and Lady Clark of Calton) said that it had some difficulty in seeing what bearing the test in McInnes had on the matter, as that case was concerned with the consequences of non-disclosure rather than any question of misdirection, and that it had doubts as to the reliance on that test in Coubroughs Executrix. Similar observations are to be found in the opinion which Lord Osborne delivered in this case: see para 220. It is, of course, exclusively a matter for the High Court of Justiciary to identify the test that is to be applied in appeals which do not raise a devolution issue: McInnes, para 5. I very much hope that it may find it possible to resolve the differences of view that have emerged as to the use that may be made of the McInnes test. We are, after all, both construing the same words in the same section of the same Act, and we are both required to read and give effect to those words in the way that section 3(1) of the Human Rights Act 1998 directs. But that is not a problem that this court can solve. Our concern is with the approach that must be taken to this case. Our position on the matter is clear. What the McInnes test does is to provide, for the assessment of whether or not there was a fair trial for the purposes of article 6, what was lacking in the Cameron test for appeals on the ground of additional evidence: a definition of what the expression miscarriage of justice in section 106(3) of the 1995 Act means in this context, by reading it in a way that is compatible with the Convention right. The tests applied by the Appeal Court Lord Osborne and Lord Johnston delivered separate opinions, but they both agreed with the Lord Justice Clerk who delivered the leading opinion and examined the circumstances of the case, as Lord Johnston said, comprehensively. So I shall concentrate on what he said to see whether the tests that the Appeal Court applied were sufficiently similar to those that ought to be applied to an appeal on the ground that there had been a violation of the appellants convention rights. The threshold test The Lord Justice Clerk addressed himself first to the question whether the new evidence was important evidence of such a kind and quality that it was likely to have been found by a reasonable jury, under proper directions, to have been of material assistance in their consideration of a critical issue that emerged at the trial: the Cameron threshold test: para 132. In para 134 he said that he was not persuaded that the proposed new evidence, if available to the defence at the trial, would in fact have been led. In paras 139-144 he said that the appellant had failed to provide a reasonable explanation of why the evidence of PC Lynch and WPC Clark was not led at the trial, as their names were on the list of witnesses and the defence was not deprived of any opportunity to precognosce them thoroughly about the factual allegations in the indictment. In para 147 he said that he was not persuaded that the recollections of either of them on the point at issue could be regarded as reliable. In para 150 he rejected the argument that the evidence of PC Lynch and WPC Clark was incompatible with the cornerstone of the Crown case as having been based on an incomplete view of the case. If they had given evidence about the presence of the rings in the house on the night of 28-29 April, the advocate depute would not have committed himself to his theory about the cornerstone of the Crown case. It can be seen from this brief summary that it is impossible to reconcile the approach which the Appeal Court took to the threshold question that section 106 raises with the test for cases of non-disclosure in McInnes, para 19. The Lord Justice Clerks acknowledgement at para 150 that, if the evidence of PC Lynch and WPC Clark had been led at the trial the advocate depute would not have committed himself to his theory, makes the point. It is plain that this was information which might materially have weakened the Crown case as presented at the trial, or might materially have strengthened the case for the defence. That was why the Crown, very properly, felt that it ought to have disclosed this material. The situation in this case is quite different from that which will normally arise where the court is presented with an appeal on the ground of fresh evidence. A fresh evidence case usually proceeds on the basis that, while there was nothing wrong with the trial as it was originally conducted, there was nevertheless something missing from it which ought now to be taken into account. Had the material that was missing from this case been disclosed, however, the conduct of the trial by both the Crown and the defence would have quite different. That is why the non-disclosure in this case goes to the root of the question whether the appellant received a fair trial. It is no answer to the point that the material ought to have been disclosed to say that the defence had the opportunity to precognosce these witnesses. The fact is that the Crown chose to present the case at the trial in a way that it would not have chosen to do if it had been aware at the time of the trial that there was evidence that the rings were in the house within hours of Arlenes disappearance. Nor is it an answer to say that the obligation of disclosure does not extend to precognitions in the possession of the Crown: Sinclair v HM Advocate [2005] UKPC 3; 2005 SC (PC) 28, para 28. This is because the evidence as to the presence of the rings in the house on that night had such an obvious bearing on a crucial part of the circumstantial case against the appellant. It does not matter where the material was to be found. It was information that ought to have been given to the defence, and the failure to do this was a breach of the appellants article 6 right. The Crown accepted that this was so when it decided to disclose this material, and in his address to this court the learned Solicitor General did not seek to argue otherwise. As for the observation in para 147 that the recollections of PC Lynch and WPC Clark on the point could not be regarded as reliable, it has to borne in mind that disclosure of this material before or during the trial would have opened up lines of cross-examination that were never pursued by the defence. It would also have materially weakened the Crowns attack on the appellant that he had no explanation to give for bringing the rings back to the house on 7 May and the theory that he had retrieved them from Arlenes dead body. He would not have had to provide an explanation if, as the evidence of PC Lynch and WPC Clark suggested, the rings were in the house all along. Of course, the reliability of their evidence would have been called into question. But so too would the reliability of the evidence for the Crown, including the video that was taken during the police search of the bathroom. It seems to me to be plain that the threshold test, as identified in McInnes, is met in this case. We must therefore consider the consequences. The consequences test The Lord Justice Clerk accepted at para 152 that the correct way to proceed was to consider the additional evidence. But, as he had already explained at para 150, he had already decided that this was not to be done by judging its effect on the way the Crown presented its case to the jury. At para 161 he concluded that the circumstantial evidence alone was sufficient to entitle the jury to convict. At para 164 he said that the evidence of Hector Dick, if the jury believed it, transformed the Crown case as it made it much more compelling by providing directly incriminating evidence. At para 166 he said that, on his interpretation of the evidence, it was not essential to a conviction that the jury should accept that the appellant left the rings in the bathroom. At para 167 he said that, on that view of the evidence and leaving aside the speech for the Crown and the directions by the trial judge, he could not see how the proposed new evidence could be of such significance as to require the verdict to be set aside. He acknowledged that, although his own view was that the evidence of the return of the rings was not crucial to the Crown case, the effect of the judges direction about the events of 7 May was to make it so. But he said that this direction had the result of enabling the court to conclude with certainty that the jury found that the appellant put the rings in the bathroom on that day. This approach too cannot be reconciled with the consequences test in McInnes, paras 20 and 24. That test requires the court to assess the consequences of the non-disclosure in the light of what actually happened at the trial in order to determine whether what happened at the trial was unfair. The approach which the Appeal Court took when it was applying the Cameron test was to assess the consequences on the assumption that, had the undisclosed material been available, the trial would have been conducted differently. That, in itself, suggests that the trial that actually happened could be regarded as having been unfair because there was a real possibility that, taking all the circumstances of the trial into account, the jury would have arrived at a different verdict. One cannot, of course, avoid making some assumptions as how the trial might have been conducted if the material had been disclosed to the defence. It will always be a question of degree as to how far it is proper to go in carrying out that exercise. But the purpose of doing this is to assess the extent to which, having regard to the way the case was conducted by the Crown, the material would have weakened the Crown case or strengthened the case for the defence. It is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented. It is not for us to speculate as to what the case might have been, much less how the jury would have reacted to it. What the Crown asks us to do, and what it persuaded the Appeal Court to do, was to consider the case on the basis that the discovery of the rings on 7 May was indicative of the appellants guilt for completely different reasons from those advanced at the trial. In effect we were being asked to deal with the case as if we were a new jury trying the case for the first time. This is not permissible. Our task is quite different but entirely clear. As the Appeal Court said in McCreight v H M Advocate [2009] HCJAC 69, 2009 SCCR 743, para 95, it is not the courts task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. We must ask ourselves whether, in the light of the undisclosed evidence, there is a real possibility that the jury at this trial would have arrived at a different verdict. The proposition that the appellant had returned the rings to the bathroom on 7 May was, as the Advocate Depute said in his address to the jury, the cornerstone of the Crowns case. It is clear, in view of the direction that was then given to them by the trial judge, that the jury must have concluded that the appellant put the rings in the bathroom on 7 May. This was the basis for the Crowns theory that he had obtained the rings from the deceaseds dead body and had placed them in the bathroom to create the impression that she had left the matrimonial home with the intention of turning her back on the life that she had had there. This theory would have been undermined by the evidence of PC Lynch and WPC Clark. It would have been challenged by lines of cross-examination of the Crown witnesses that were never developed at the trial, and by questions that were never put to the appellant in chief or in re-examination. The point could have been made that it was improbable that, if the rings were in the bathroom on 28 and 29 April when the police visited the house, the appellant would have removed them and then chosen to return them on 7 May. The theory that he removed them from the dead body would, if the evidence of PC Lynch and WPC Clark were to be accepted, have been untenable. These and other arguments that the defence would have been able to develop would have struck at the heart of the case that the Crown presented. The trial would have been significantly different had the material that was not disclosed been available. There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crowns case that the appellant returned the rings to the bathroom on 7 May. If that were so, the jurys verdict would be bound in view of the trial judges direction to have been different. Taking all the circumstances of the trial into account, and the extent to which the way the Crown chose to present the case would have been affected by the disclosure, the conclusion that the consequences test as identified in McInnes has been satisfied seems to me to be inescapable. Conclusion The question, as I have said, is whether the tests which the Appeal Court applied when it decided to dismiss this appeal as if it were a fresh evidence appeal were in essence the same as it would have had to have applied if it had entertained the argument that there had been a violation of the appellants article 6 Convention rights. For the reasons I have given, I think that this question must be answered in the negative. This then raises the question as to what this court should do in order to determine the appeal. This case has come before us as an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998. Rule 29(1) of the Supreme Court Rules 2009 (SI 2009/1603) provides that, in relation to an appeal, the Supreme Court has all the powers of the court below and that it may, among other things, affirm, set aside or vary any order of judgment made or given by that court: see rule 29(1)(a). Section 118 of the Criminal Procedure (Scotland) Act 1995 provides, among other things, that the High Court of Justiciary may dispose of a conviction by setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of the Act: see section 118(1)(c). The effect of rule 29(1) is that these powers are available to this court too if, having considered the devolution issue, it is satisfied that the answer to it must be that there was a miscarriage of justice in the proceedings in which the appellant was convicted. For the reasons I have given I would hold, applying the McInnes test, that there was a miscarriage of justice at the appellants trial and that the appeal must be allowed. I would, however, remit the question whether authority should be granted to bring a new prosecution under section 119 of the Criminal Procedure (Scotland) Act 1995 for determination by the High Court of Justiciary. As it is its practice not to quash a conviction until consideration has been given to the question whether there should be a retrial, I would remit the case to a differently constituted appeal court to determine that question and, having done so, to quash the conviction. I very much regret any further delay that this decision may lead to in the final disposal of the case. I regret too the distress that it will cause to Arlene Frasers relatives, who were present in court throughout the hearing of the appeal. But it has to be recognised that the appellant was entitled to a fair trial. Any unfairness at the trial may be put right at the stage of an appeal. But for that to be achieved the right tests must be applied, so that the appeal too is fair. The conclusion that I would reach as to what these tests lead to leaves us with no alternative but to make the orders which I have proposed. I have read Lord Hopes judgment and gratefully adopt his account of the facts and the particular circumstances in which this appeal arises. I recognise, of course, as Lord Hope more than once points out, that there is no appeal against the High Court of Justiciary in Scotland in respect of criminal matters and that this courts jurisdiction is limited to consideration of devolution issues only. So far as devolution issues are concerned, however, we have no option but to exercise our jurisdiction and, as again Lord Hope points out, a devolution issue clearly does arise here. Really there can be no doubt that the prosecutor was under a duty to disclose to the defence PC Lynchs precognition of 3 July 2002 (stating that he had seen the rings during the night of 28/29 April 1998) as, indeed, the Advocate Depute plainly would have done had he himself been aware of it. On any possible view of the facts, that precognition was material which might have materially weakened the Crown case or materially strengthened the case of the defence see McInnes v HM Advocate 2010 SLT 266 at paras 19, 28 (and 29) and 39. The accuseds article 6 Convention rights were therefore infringed. The critical question for the Appeal Court was therefore whether, in the result, the trial had been unfair. (It is, of course, clearly established on the cases that not every article 6 failure to disclose disclosable material automatically results in an unfair trial.) As to this, the test of such unfairness is that now authoritatively laid down by this Court in McInnes in short whether, taking into account all the circumstances of the trial, there is a real possibility that the jury would have arrived at a different verdict had the undisclosed material in fact been disclosed to the defence see particularly McInnes at paras 24, 30 and 35. Is this the same test as the Appeal Court in fact applied here, treating the case as they did as a fresh evidence appeal under section 106 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act)? To this question there can only be one answer: clearly it is not, for all the reasons given by Lord Hope at paras 27-38 of his judgment. As Lord Hope observes at para 29, it is exclusively a matter for the High Court of Justiciary what test to apply in appeals which do not raise a devolution issue. As, however, that paragraph also suggests, it would be somewhat bizarre to apply different tests in deciding whether or not there has been a miscarriage of justice depending on whether the Appeal Court is concerned with undisclosed material which should have been disclosed (a devolution issue) or with fresh evidence (not a devolution issue). As I indicated in McInnes (at paras 36 and 37), the test, which is ultimately one for the Appeal Court, is logically the same for fresh evidence appeals as for those involving undisclosed statements. Lest it be suggested that undisclosed statements imply fault on the part of the prosecution (arguably, therefore, calling for a lower test to be applied to whether there has been a miscarriage of justice) whereas fresh evidence may not, I would point out that many fresh evidence cases operate at the very least to expose serious flaws in the prosecution evidence take, for example, the lying main prosecution witness in Dial v State of Trinidad and Tobago [2005] UKPC 4; [2005] 1 WLR 1660 (referred to in para 37 of my judgment in McInnes) or, indeed, the egregiously deficient expert evidence revealed by the fresh evidence in McCreight v HM Advocate 2009 SCCR 743 (a decision to which I shall shortly return). Of course, the route by which the court arrives at the question has there been a miscarriage of justice? differs depending on whether the appeal is brought on undisclosed material or on fresh evidence grounds. As explained in McInnes, the intermediate (article 6) issue arising in any undisclosed material case is: did the non-disclosure make the trial unfair? In a fresh evidence case, by contrast, the appellant must first establish not merely that the fresh evidence is important and reliable but also that there is a reasonable explanation for why it was not adduced at the original trial; only then does the question arise: without it, has there been a miscarriage of justice? Naturally, as Lord Hope points out at para 32, most fresh evidence cases involve no criticism of the original trial proceedings. But ultimately they raise the same question as is raised by the undisclosed material cases. So the McInnes test is, I suggest, equally applicable to both. As I have observed, the McInnes test whether the relevant fresh material, if adduced at trial, might reasonably have affected the decision of the trial jury is one for the Appeal Court. That statement, however, needs this qualification: in certain rare cases the fresh evidence (or, as the case may be, undisclosed statement) will be of such overwhelming overall import as to make it inappropriate for the Appeal Court simply to add it to the original evidence and ask itself whether the jury might still reasonably have convicted. Instead, in such cases, the Appeal Court will have no alternative but to conclude that there has been a miscarriage of justice, and then decide simply whether or not to order a retrial. Such indeed was the conclusion of the Board in Bain v The Queen [2007] UKPC 33 (referred to at para 36 of my judgment in McInnes) given the dramatically different state of the evidence on all the key factual questions in the case at the conclusion of the appeal hearing compared to how they had been presented to the jury at trial. Perhaps more directly relevant to the present case, however, this was precisely the decision reached by the Appeal Court in McCreight to which I have already briefly referred. McCreight concerned a murder appeal brought in the light of fresh expert evidence. The victim had died from chloroform and the appellant was convicted specifically on the basis that he had held a chloroformed rag over her face, her death having been caused by the inhalation, not the ingestion, of chloroform. The fresh evidence exposed a thousand-fold error in the reporting of one particular test originally relied upon and, put shortly, established that death by ingestion alone could no longer be excluded. The Appeal Court rejected the Crowns case that it mattered not which way the chloroform entered the deceaseds body and held that, had the fresh evidence been known at the time, the whole trial would have been conducted entirely differently. In such circumstances, said the court: It is not our task to decide what the outcome of the trial would have been: in a case such as this, that would involve fruitless speculation. Amongst the authorities considered by the Appeal Court in McCreight was, it may be noted, that of the Lord Justice Clerk in the present case. For my part I found the commentary on the case (at p 777 of the report) of assistance: It might be thought that this report is more suitable for publication in a medical journal than in a set of law reports, but although its content is largely medical or scientific and it depends to a large extent on its rather special facts, it is of some legal interest as an example of what might be called a Smith v HM Advocate case, rather than a Fraser v HM Advocate one . . .. That is to say, the fresh evidence was such that the court could not simply add it to the original evidence and ask itself whether the jury would still have convicted. It was not even such that it could be said that if it had been led at the trial the approach of the Crown would have taken account of it, and that the evidence as a whole would still have led the jury to convict. The case does not depend on the terms of the advocate deputes speech or even of the judges charge to the jury. It depends on the more fundamental consideration that the fresh evidence was so overwhelming that it would have affected the whole way in which the trial was conducted. The problem for the Crown was not the approach of the trial depute, but the terms of the indictment, which referred exclusively to inhalation . . .. The resultant miscarriage of justice might be described as the failure to provide the accused with a trial based on the true position, and in that situation it seems that the court will not consider what the result of such a trial might have been. That is an extreme situation unlikely to happen very often, and there are also very few cases in which the original expert evidence is so egregious or at least one hopes so. For the reasons given earlier, we have no alternative but to allow this appeal: the Appeal Court applied the wrong test. Left to myself, however, I should have been inclined to remit the whole matter to that court for reconsideration, leaving it to them to decide, first, whether, in the light of McCreight, PC Lynchs statement is of such overwhelming significance and would have had so fundamental an impact on the whole course of the trial that it is simply not open to the Appeal Court to decide what the outcome of the trial might have been; secondly, assuming that the Appeal Court concluded that PC Lynchs statement was not of such overwhelming significance as that, whether nonetheless, applying the McInnes test, there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence. In saying that, I am influenced by what I regard as the great strength of the Crowns evidence as a whole against the appellant. Indeed, there seems to me force in the Appeal Courts own view that the Crowns case is logically stronger still in the light of PC Lynchs statement than without it. Given, however, the view of the majority of this court that the application of the McInnes test here leads inescapably to the conclusion that there was a real possibility that the jury might have arrived at a different verdict ie that this would be the only rational view open to the Appeal Court I shall not carry my own doubts to the point of dissent. In the result, all that will be left for decision by the Appeal Court under section 118 of the 1995 Act is the question whether authority should be granted to bring a new prosecution under section 119. To this end I agree with Lord Hope that the case should be remitted to a different constitution of the Appeal Court to determine that question and having done so to quash the conviction. Needless to say, I share to the full the regret expressed by Lord Hope both as to the delay our decision is likely to cause in the final disposal of the case and as to the distress it will cause to the deceaseds grieving relatives. |
Under the Food Safety Act 1990 the appellant local authority (the council) has responsibility for the enforcement of food safety laws in its area, many of which are contained in regulations made under the Act. We are concerned in this case with the Food Labelling Regulations 1996 (SI 1996/1499) (the regulations). The respondent (the company) carries on the business of buying, processing and selling meat products. On 29 June 2011 inspectors from the councils trading standards department visited the companys premises where they found a number of packages of frozen meat labelled with use by dates which had passed. An information was preferred against it, including 23 charges under regulation 44(1)(d). A sample charge was in the following terms: On 29 June [2011] at Cwmbran, you Douglas Willis Ltd, Unit 5, Grange Road, Industrial Estate, Cwmbran, Torfaen, did sell food, namely Pork Pigs Tongues labelled Use by 27/7/09, after the date shown in the use by date relating to it, Contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 made under the Food Safety Act 1990. The charges were dismissed by Gwent Justices on 1 September 2011 on a submission by the company that it had no case to answer. The justices accepted the companys argument that the prosecution had to prove that at the date of the alleged offence the food was highly perishable and likely after a short period to constitute an immediate danger to human health. The council appealed by way of case stated to the Divisional Court. From the findings in the stated case, there was no evidence as to when the food items had been labelled or frozen. However, the justices concluded that since they were all frozen at the time of the inspection, they were not then highly perishable and so did not require a use by date under the regulations. Therefore no offence was committed under the relevant regulation. The appeal was heard by Aikens LJ and Maddison J, who delivered a joint judgment: [2012] EWHC 296 (Admin), [2012] CTLC 16. The company argued that the justices were right in their approach. The council argued that the justices were wrong and that the prosecution had only to show that the company was selling (within the meaning of the regulation) food which was the subject of a use by label displaying a date which had passed. The court did not accept either partys argument. It held that the prosecution did not have to show that the food was in a highly perishable state at the date of the alleged offence, but that it did have to show that the food had at some stage been in a state which required it to be labelled with a use by date and that the date had passed. At the request of the council, the court certified that the case involved the following point of law of general public importance: Does an offence under regulation 44(1)(d) of the Food Labelling Regulations 1996 require the prosecution to prove that the label or marking bearing the use by date, after which the food was sold, was applied at a time when (1) the food was ready for delivery to the ultimate consumer or to a catering establishment, and (2) from the microbiological point of view it was highly perishable and in consequence likely after a short period to constitute an immediate danger to human health? Permission to appeal was given by this court. The company was not represented on hearing of the appeal. The reasons are understandable but the result is unfortunate. From the councils viewpoint, the appeal raised a matter of general importance. From the companys viewpoint, the combination of the costs which it would incur in contesting the appeal and its potential liability to pay the councils costs presented a bigger threat to it than the likely amount of any fines. It is a small family company. In these circumstances the court asked a member of its legal staff to prepare a note of points which might have been made on behalf of the company. This was disclosed to Jonathan Kirk QC, who represented the council. In addition, mindful that he was appearing for a public authority against an unrepresented respondent, Mr Kirk himself invited the court to consider those points which he would have regarded as fairly capable of argument if he had been instructed on the other side. This was in accordance with the best tradition of the bar and we believe that it has enabled us fairly to evaluate all the arguments. Nevertheless, it is still unfortunate that the court did not the have the benefit of hearing argument on both sides. The regulations There are EU Directives about food labelling but the UK regulations go further than European law requires and it is not necessary to refer to the European provisions. Part 1 of the regulations contains definitions. Under regulation 2, sell is defined as meaning offer or expose for sale or have in possession for sale. The term appropriate durability indication is defined as meaning: (a) in the case of a food other than one specified in sub paragraph (b) of this definition, an indication of minimum durability, and (b) in the case of a food which, from the microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health, a use by date. The term ultimate consumer is defined as meaning any person who buys otherwise than for the purposes of resale, for the purposes of a catering establishment or for the purposes of a manufacturing business. The term catering establishment has a definition which it is unnecessary to set out but it includes restaurants, schools and hospitals. Part II sets out labelling requirements. Regulation 4(1) provides: Subject to [exceptions which are immaterial in the present case], this Part of these Regulations applies to food which is ready for delivery to the ultimate consumer or to a catering establishment. Regulation 5 contains a general labelling requirement. It provides: Subject to the following provisions of this Part of these Regulations, all food to which this Part of these Regulations applies shall be marked or labelled with (c) the appropriate durability indication Regulation 21 deals with cases where a use by date is required by virtue of regulations 2 and 5. Regulation 21(1) provides: Where a use by date is required in respect of a food it shall be indicated by the words use by followed by (a) the date up to and including which the food, if properly stored, is recommended for use, and (b) any storage conditions which need to be observed. Regulation 35 prescribes the manner in which food is to be marked or labelled. It provides: When any food other than [immaterial exceptions] is sold, the particulars with which it is required to be marked or labelled by these Regulations shall appear (a) on the packaging, or (b) on a label attached to the packaging, or (c) on a label that is clearly visible through the packaging, save that where the sale is otherwise than to the ultimate consumer such particulars may, alternatively, appear only on the commercial documents relating to the food where it can be guaranteed that such documents, containing all such particulars, either accompany the food to which they relate or were sent before, or at the same time as, delivery of the food, and provided always that the particulars required by Regulation 5 (c) shall also be marked or labelled on the outermost packaging in which that food is sold. Part IV deals with offences and legal proceedings. Regulation 44 (1) provides: If any person (a) sells any food which is not marked or labelled in accordance with the provisions of Part II of these Regulations, or (d) sells any food after the date shown in a use by date relating to it, or (e) being a person other than whichever of (i) the manufacturer, (ii) the packer, or (iii) the seller established within the European Community, was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food, he shall be guilty of an offence and shall be liable on summary conviction to a fine Regulation 46 provides that it is a defence to a charge under regulation 44(1)(e) to show that the removal or alteration was effected with the written authorisation of a person who could himself have effected the removal or alteration without committing an offence under that regulation. Regulation 48 confirms that the extended meaning of sale referred to above applies to offences under the regulations. Section 21 of the Act enables a person charged with an offence under the regulations to advance a defence of due diligence, ie that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control. The Divisional Courts judgment The reasoning of the Divisional Court may be summarised as follows: The labelling requirements in Part II together with the definitions in i) Part I are fundamental to the scheme of the regulations. ii) The offence under regulation 44(1)(a), ie selling food which is not marked or labelled in accordance with Part II of the regulations, is committed if food is sold which at the point of sale is not marked or labelled in the way that Part II requires it to have been marked or labelled. Accordingly, if a time had previously come when the food required to be labelled with a use by label, but there was a failure to do so, an offence would be committed by thereafter selling it without such a label, regardless of the condition of the food at the point of sale. iii) Likewise, the offence of selling food after the date shown in a use by date relating to it, contrary to regulation 44(1)(d), would be committed if food were sold after the date shown in a use by label which Part II required it to have had. iv) The need for the prosecution to show that Part II required the food to have had a use by label was implicit in the words a use by date relating to it. The court said at para 27: A use by label cannot, in our view, relate to the food if the food does not require that type of label to be attached to it. The court went on to say that if, as a result of a misunderstanding, a person put a use by label on food that was in a frozen state at the point when it became ready for delivery to the ultimate consumer or a caterer, an offence could not be committed under regulation 44(1)(d) by selling the food after the expiry of its supposed use by date. v) The court noted, as the prosecution had pointed out, that regulation 44(1)(d) did not include the words in accordance with the provisions of Part II of these Regulations, by contrast with the language of regulation 44(1)(a). However, it observed that the obligation to label food with a use by date could only arise by reason of the earlier provisions, and it considered that the reference in regulation 44(1)(d) to a use by date must be construed in accordance with the provisions of regulations 2, 4 and 5. vi) The court also noted the prosecutions concern that the courts construction would encourage widespread evasion of the regulations by freezing food after its use by date had passed and then selling it without committing any offence. However, the court considered that the fact that there was a use by label would be prima facie evidence that it was required, and that an evidential burden would lie on a person who sold the food after the relevant date to show that it had not in fact required a use by label. Discussion The Divisional Court was right to reject the companys argument that the prosecution had to prove that the food was in a highly perishable state at the time of the alleged offences under regulation 44(1)(d). On the wording of the paragraph, all that the prosecution had to prove was that (i) the food was in the companys possession for sale (and therefore sold within the extended meaning of that term), (ii) that the food had a use by mark or label relating to it, and (iii) that the date shown had passed. To read into paragraph (d) an additional requirement that the food was in a highly perishable state at the time of the alleged offence would seriously weaken the regulatory scheme and the protection provided to consumers. It would enable a retailer of perishable food, which had passed its use by date, to freeze it and then sell it without the consumer knowing how long it had been unfrozen. Mr Kirk submitted that it was similarly wrong for the Divisional Court to read into the paragraph a requirement for the prosecution to show not only that the product had a use by mark or label, showing a date which had passed, but that it was required to have such a marking. In his submission, this construction gave the paragraph, and in particular the word relating, a meaning which it did not naturally bear and which did not accord with the scheme and purpose of the regulations. As a matter of ordinary English, I would read relating to in the phrase sells any food after the date shown in a use by date relating to it as synonymous with referring to; or, in other words, as meaning simply that the food sold is the subject of a mark or label with a use by date. It denotes a factual connection rather than a legal requirement. The word relating is similarly used, for example, in regulation 35. Dealing with the ways in which marking may be done, that regulation permits certain particulars to appear on the commercial documents relating to the food. (In fairness to the Divisional Court, Mr Kirk acknowledged that its attention was not drawn to this point or to other examples in the regulations where relating to is used in the sense of referring to.) The next question is whether contextual considerations should lead to the conclusion that the words of regulation 44(1)(d) are intended to import an additional connection between the use by marking and the food, namely a requirement for the food to have such a marking under the provisions of Part II. With respect to the Divisional Court, I do not think that comparison with regulation 44(1)(a) supports such a conclusion. Rather, the reverse. It is significant that regulation 44(1)(a) contains the words marked or labelled in accordance with the provisions of Part II of these Regulations, which are missing from regulation 44(1)(d), and there is an intelligible reason for those words to appear in paragraph (a) but not in paragraph (d). Paragraph (a) deals with the sale of food which ought to have been, but was not, marked or labelled under Part II. Once food has been marked with a use by date, the regulations protect the consumer by prohibiting the removal or alteration of the marking, except by or with the written authority of the person originally responsible for it, and by prohibiting the sale of the food after the use by date shown. These prohibitions serve a parallel purpose and are set out in paragraphs (d) and (e). Consider the example given by the Divisional Court of a use by label being placed on food by a mistake. A retailer who bought the food in that state would commit an offence under paragraph (e) if he removed the label without the written authority of the original labeller. This is rational because the person responsible for the labelling will know, first hand, the relevant facts and circumstances. There would be a lacuna or anomaly if the retailer could nevertheless sell the product to a consumer after the relevant date had passed. Paragraph (d) prohibits him from doing so. If, therefore, there has in truth been a mistake, the way of correcting it within the scope of the regulations is to obtain written authorisation for removing or altering the label from the person who was originally responsible for it. As to the practical problems of enforcement if the Divisional Courts construction is correct, the potential complications would be significantly greater than in a case under paragraph (a). Where food inspectors find food which they consider has not been marked in accordance with the provisions of Part II, evidence will be available as to its actual condition at the time of inspection. The situation would be different in a prosecution under paragraph (d) if the food was frozen at the time of the inspection. On the Divisional Courts construction, questions would arise as to when the marking had been done and what had been the state of the food at the time of the marking, which would be matters unknown to the inspectors. Mr Kirk argued persuasively that it is not unrealistic to imagine a defendant being able to obtain expert evidence sufficient to raise an issue about whether the state of the food at the time of its marking (whenever that may have been) would have been such that from a microbiological point of view it was likely after a short period to constitute an immediate danger to human health. He referred to literature showing that this is potentially a complex and controversial topic. Realistically, an enforcement authority might be understandably reluctant to incur the expense of launching a prosecution if it were likely to become involved in issues of that kind. There was some discussion in argument about the position if a use by marking was applied maliciously by somebody who had no business to do so. Suppose that a disaffected customer, or a customer with a warped sense of humour, were to put labels with expired use by dates on meat in a supermarket before being noticed and stopped. Or suppose that an anonymous employee put false labels on food products as an act of industrial sabotage. We are not concerned with cases of that kind. It may be possible as a matter of common sense to construe paragraph (d) as not intended to apply to a marking made by someone who had no responsibility at the time of so doing for the production or custody of the food (ie the opposite of a person envisaged by paragraph (e) as having had such responsibility and therefore having authority to alter or remove a label) but who was merely acting as an interfering mischief maker. However, it is unnecessary to decide that point, about which the court did not hear argument, and I do not consider that such a remote consideration should affect the question of construction with which the court is concerned. I conclude that under regulation 44(1)(d) it is sufficient for the prosecution to prove that the defendant had food in its possession for the purpose of sale which was the subject of a mark or label showing a use by date which had passed. The justices were therefore wrong to accept the companys submission of no case to answer in relation to the 23 charges brought under that regulation. The answer to the question certified by the Divisional Court is no. In view of the passage of time, it would be inappropriate to remit the case to the original justices to continue the hearing. The Divisional Court ordered that the case should be remitted to a different panel of justices for a rehearing, and that order will stand, but the rehearing will be in accordance with the law stated in this judgment. To that extent, this appeal is allowed. |
The issue is simply stated. Child tax credit (CTC) is payable to one person only in respect of each child, even where the care of the child is shared between separated parents. It is (now) accepted that entitlement to CTC falls within the ambit of article 1 of the First Protocol to the European Convention on Human Rights (Protection of property): see R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311. It is (now) accepted that the rule discriminates indirectly against fathers, because experience shows that they are far more likely than mothers to be looking after the child for the smaller number of days in the week. The question, therefore, is whether this discrimination is justified or whether the refusal of CTC to a father who looks after his children for three days a week is incompatible with his convention rights. If it is incompatible there is a further question as to how this incompatibility can be remedied. The facts The appellant father has two children, a son born on 7 June 1998, and a daughter born on 6 May 1999. We are concerned with the period from 12 January 2004 until December 2005. During that time, they lived with their mother but had very extensive contact with their father, who looked after them for at least three days a week. A court order dated 8 November 2004 sets out the precise arrangements determined after a contested hearing between the parents. In effect, this provided for the father to have the children for three full weekends in every four and on Thursdays in the fourth week and for half of all school holidays. In other cases, such a level of shared care might well be reflected in a shared residence order rather than in an order for residence and contact. But the labels attached to the arrangements are immaterial for the purpose of the present issue. Throughout the relevant period, the father was in receipt of income support, contributory incapacity benefit and non-contributory disability living allowance. Income support was, of course, a means-tested benefit equivalent to income-based jobseekers allowance and set at the officially prescribed subsistence level. Following the introduction of CTC, the childrens needs were not taken into account in assessing the fathers entitlement to income support. He claimed CTC in respect of both children but his claim was refused on the ground that the mother had the main responsibility for them. He challenged this decision on the ground that the rule restricting entitlement to one household discriminated in favour of women. He succeeded in the Appeal Tribunal (Ref: 201/07/453 and 08/337, 16 June 2008) but failed before Upper Tribunal Judge Jacobs in the Upper Tribunal (CTC/2608/2008, 4 February 2009) and before the Court of Appeal where the judgment of the court was delivered by Richards LJ: [2010] EWCA Civ 56; [2010] 1 FCR 630. Child Tax Credit CTC and Working Tax Credit were introduced by the Tax Credits Act 2002 (TCA). CTC replaced the separate systems for taking account of childrens needs in the tax and benefits systems. Previously, people in work (or otherwise liable to pay income tax) might claim the childrens tax credit to set off against their income. This was administered by the tax authorities. People out of work (or otherwise claiming means-tested benefits) might claim additions to their income support or income-based jobseekers allowance to meet their childrens needs. This was administered by the benefits authorities. Under the new system, a single tax credit is payable in respect of each child, irrespective of whether the claimant is in or out of work, and is administered by Her Majestys Revenue and Customs (HMRC). CTC is like income support and jobseekers allowance, in that it is a benefit rather than a disregard and it is means-tested, so that the higher ones income the less the benefit, until eventually it tapers out altogether. But in several other respects, including the light touch and non-stigmatising way of measuring income, calculated for the year ahead based on the previous years income, with a balancing exercise at the end of the year, it is like a tax allowance. As the Government explained, in The Child and Working Tax Credits: The Modernisation of Britains Tax and Benefits System, April 2002, para 2.3: The Child Tax Credit will create a single, seamless system of support for families with children, payable irrespective of the work status of the adults in the household. This means that the Child Tax Credit will form a stable and secure income bridge as families move off welfare and into work. It will also provide a common framework of assessment, so that all families are part of the same inclusive system and poorer families do not feel stigmatised. CTC is, of course, separate from and additional to child benefit, which (at that time) was a universal flat rate benefit available to everyone with children, and also administered by HMRC. Like CTC, child benefit cannot be split between two claimants (Social Security Contributions and Benefits Act 1992, section 144). This single payment rule has been challenged but so far unsuccessfully: see R (Barber) v Secretary of State for Work and Pensions [2002] EWHC 1915 (Admin); [2002] 2 FLR 1181. Where separated parents share the care of their children, they may elect who is to receive the benefit. Failing that, HMRC has a discretion to decide who should have it, without any statutory test (Sched 10, para 5 of the 1992 Act). They may, therefore, allocate the benefit for one child to one household and for another child to the other: see R (Ford) v Board of Inland Revenue [2005] EWHC 1109 (Admin). Entitlement to CTC depends upon making a claim: TCA, section 3(1). A claim may be made either jointly by a couple or by a single person who is not entitled to make a joint claim: section 3(3). Opposite or same sex partners who are married or in a civil partnership or living together as if they were married or civil partners are a couple unless they are separated by court order or in circumstances in which the separation is likely to be permanent (section 3(5A) as substituted by paragraph 144(3) of Part 14 of Schedule 24 to the Civil Partnership Act 2004). Joint claims are assessed on the couples aggregate income (section 7(4)(a)). Entitlement to CTC depends upon the claimant or either or both claimants in a couple being responsible for one or more children (section 8(1)). The circumstances in which a person is or is not responsible for a child may be prescribed by regulations (section 8(2)). If more than one person may be entitled to CTC in respect of the same child, the regulations may provide for the amount of the CTC for any of them to be less than it would be if only one claimant were entitled (section 9(7)). In other words, the regulations could provide for the CTC to be shared, for example between separated parents, but in fact they do not. Regulation 3(1) of the Child Tax Credit Regulations 2002 (SI 2002/2007), (as amended by article 4(3) of the Civil Partnership Act 2004 (Tax Credits, etc) (Consequential Amendments) Order 2005 (SI 2005/2919)), provides, so far as relevant: For the purposes of child tax credit the circumstances in which a person is or is not responsible for a child . . . shall be determined in accordance with the following Rules. Rule 1 1.1 A person shall be treated as responsible for a child who is normally living with him (the normally living with test). 1.2 This Rule is subject to Rules 2 to 4. Rule 2 2.1 This Rule applies where (a) a child . . . normally lives with two or more persons in (i) different households, or (ii) the same household, where those persons are not limited to members of a couple, or (iii) a combination of (i) and (ii), and (b) two or more of those persons make separate claims (that is, not a single joint claim made by a couple) for Child Tax Credit in respect of the child . . . 2.2 The child . . . shall be treated as the responsibility of (a) only one of those persons making such claims, and (b) whichever of them has (comparing between them) the main responsibility for him (the main responsibility test), subject to Rules 3 and 4. Rule 3 3.1 The persons mentioned in Rule 2.2 (other than the child . . .) may jointly elect as to which of them satisfies the main responsibility test for the child . . ., and in default of agreement the Board may determine that question on the information available to them at the time of their determination. As with child benefit, therefore, the parents are free to elect between themselves who is to have the CTC. Unlike child benefit, however, HMRC is constrained by the main responsibility test if the parents fail to agree. Although the Act allows for sharing, the decision not to provide for it in the regulations was deliberate. The Paymaster General, Mrs Dawn Primarolo, explained to Parliament (Hansard House of Commons Debates, 26 June 2002, vol 387, col 926-927): Together [the Act and the regulations] create a system that ensures that the family with main responsibility for a child will be provided with a suitable level of support, depending on their needs. That is similar to many current systems of support for children, and we believe that currently - it provides the most suitable means to ensure that we can focus support on raising children out of poverty. Our present aim is to enable one family to claim support for any particular child at any one time. That is the principle on which the Bill, the draft regulations and the business systems being developed are based. There are several sound reasons for that approach. Usually, the person or couple who have the main responsibility for care of a child bear more of the everyday responsibilities for the child, and meet the everyday expenditure for him or her. It is vital, especially for families on lower incomes, that enough support is directed to that family to lift the child from poverty, or to keep him or her out of poverty. The Government recognised that patterns of care may be changing, that many more families now share responsibility for children than was previously the case, and so, in future, directing support to one family might not be the right approach. But they had no intention . . . of making hasty or ill-considered changes. The question of shared responsibility for children goes wider than tax credits and affects other systems of support that recognise the needs of families with children, such as housing benefit. Consultation and contact with lobby groups had shown that payment of support to the family with the main responsibility for the child is seen as the most appropriate way to deal with the vast majority of families with children. Any change would also entail extensive and expensive IT and business systems changes. This no-splitting approach is in line with the approach generally adopted across the benefit system, including housing and council tax benefits, although splitting had earlier been provided for in the child tax allowances which were abolished as from 1982, in the short-lived childrens tax credits which preceded CTC, and in the rules for supplementary benefit which was replaced by income support in 1988. So the Government adopted a no-splitting policy having had some experience of operating the alternative. Under the Welfare Reform Act 2012, CTC and many other benefits will be replaced by a new benefit, Universal Credit. Initially this will apply only to new claims, so that existing claimants will remain on CTC until they are transferred to Universal Credit. The Government has announced that its current intention is to retain the no-splitting rule (Universal Credit: welfare that works, Chapter 2, para 40). After the decision not to provide for CTC to be split, there came the decision of the Court of Appeal in Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749, [2005] EuLR 385. This concerned claims for child supplements to jobseekers allowance which had been made in 1997, long before the introduction of CTC. Father and mother were sharing the care of their two children roughly equally, but the mother was receiving the child benefit in respect of them. The father was claiming jobseekers allowance, but was denied the supplements applicable to children for whom the claimant was responsible because he was not in receipt of the child benefit. The regulations provided that the person in receipt of child benefit was to be treated as responsible for the child in question. Unlike CTC, jobseekers allowance was covered by Council Directive 79/7/EEC, article 4 of which prohibited discrimination on grounds of sex. The Court of Appeal held that the rule was indirectly discriminatory against fathers; that the link with child benefit could not be justified; and that treating only one parent as responsible in a shared care situation could not be justified. Following Hockenjos, officials in HMRC and HM Treasury conducted a review of the no splitting rule in CTC. They produced a Table of Policy Issues, assessing the options of Single Payment, Split Payment and Extra Payment against the criteria of Precedent, Rationale, Impact on the benefits system, Public expenditure, Support for Shared parenting, Administration and Other factors. The full table is annexed to Upper Tribunal Judge Jacobs decision and the columns relating to the Single payment and Split payment options are reproduced by the Court of Appeal at para 33 of their judgment (the Extra payment option no doubt being regarded by all as a complete non-starter). The full table is also annexed to this judgment. Unsurprisingly, officials concluded that there had been no material change in the balance of policies which had led to the original CTC scheme and so no further work was done. Upper Tribunal Judge Jacobs in the present case distinguished Hockenjos on the basis: first, that discrimination under EU law is different from discrimination under the ECHR; that cost is no excuse in EU law, but it may be a justification under the ECHR; that there were no competing claims in that case, because the mother was not claiming jobseekers allowance; that there was a fundamental principle of equality in EU law; and finally, and most importantly, that the structure of jobseekers allowance and CTC were different. The Court of Appeal did not think that the differences between EU and ECHR law were likely to lead to materially different outcomes (para 53); but they were impressed that the Government had thought about the issue when introducing CTC and had reviewed the policy in the light of the Hockenjos case (para 55); that there was no equivalent to the linkage with child benefit, which was the primary objectionable feature of the JSA scheme (para 59); and that CTC is a benefit of a different kind from JSA (para 60). They therefore reached their own conclusion on justification rather than following Hockenjos: [2010] EWCA Civ 56. The test for justification? The proper approach to justification in cases involving discrimination in state benefits is to be found in the Grand Chambers decision in Stec v United Kingdom (2006) 43 EHRR 1017. The benefits in question were additional benefits for people who had to stop work because of injury at work or occupational disease. They were entitled to an earnings related benefit known as reduced earnings allowance (REA). But on reaching the state pension age, they either continued to receive REA at a frozen rate or received instead a retirement allowance (RA) which reflected their reduced pension entitlement rather than reduced earnings. Women suffered this reduction in benefits earlier than men because they reached state pension age at 60 whereas men reached it at 65. The Court repeated the well-known general principle that A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (para 51). However, it explained the margin of appreciation enjoyed by the contracting states in this context (para 52): The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation. The phrase manifestly without reasonable foundation dates back to James v United Kingdom (1986) 8 EHRR 123, para 46, which concerned the compatibility of leasehold enfranchisement with article 1 of the First Protocol. In Stec, the Court clearly applied this test to the states decisions as to when and how to correct the inequality in the state pension ages, which had originally been introduced to correct the disadvantaged position of women. Similarly, the decision to link eligibility for REA to the pension system was reasonably and objectively justified, given that this benefit is intended to compensate for reduced earning capacity during a persons working life (para 66). The Grand Chamber applied the Stec test again to social security benefits in Carson v United Kingdom (2010) 51 EHRR 369, para 61, albeit in the context of discrimination on grounds of country of residence and age rather than sex. The same test was applied by Lord Neuberger (with whom Lord Hope, Lord Walker and Lord Rodger agreed) in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311, which concerned the denial of income support disability premium to rough sleepers. Having quoted para 52 of Stec he observed, at para 56, that this was an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express, or primary grounds. He went on to say that it was not possible to characterise the views taken by the executive as unreasonable. He concluded (para 57): The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable. Their Lordships all stressed that this was not a case of discrimination on one of the core or listed grounds and that this might make a difference. In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, both Lord Hoffmann and Lord Walker drew a distinction between discrimination on grounds such as race and sex (sometimes referred to as suspect) and discrimination on grounds such as place of residence and age, with which that case was concerned. But that was before the Grand Chambers decision in Stec. It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the manifestly without reasonable foundation test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widows pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination involved in Stec and Runkee, they must, as the Court of Appeal observed (para 50), apply a fortiori to the indirect sex discrimination with which we are concerned. The reality is that, although the rule does happen to be indirectly discriminatory against fathers, the complaint would be exactly the same if it did not discriminate between the sexes. Mothers who share the care of their children for a shorter period each week while living on subsistence level benefits have exactly the same problem. The real object of the complaint is the discrimination between majority and minority shared carers. It is quite likely that the Strasbourg Court would regard this as another status for the purpose of article 14, because they have taken a broad view of what that entails. But this reinforces the view that they would apply the manifestly without reasonable foundation test of justification. In fact, the appellant did not argue for anything other than the test established in Stec and RJM. It is unnecessary for us to consider to what extent the test under the ECHR is different from the test in EU law. EU law requires that, in order to justify indirect sex discrimination, the state has to show that the rule in question is a suitable and necessary means of achieving a legitimate social policy aim which is unrelated to discrimination on the prohibited ground. In choosing the measures capable of achieving the aims of its social and economic policy, the state has a broad margin of discretion, although it cannot frustrate the implementation of a fundamental principle such as equal pay for men and women: see R v Secretary of State for Employment, Ex p Seymour-Smith (Case C-167/97) [1999] ECR I-623 and [1999] 2 AC 554. The Court of Appeal in this case thought that the two tests would not lead to materially different outcomes and in particular that the Court of Appeal in Hockenjos would have reached the same conclusion under the ECHR as they did under EU law (para 53). Is the rule justified? But the fact that the test is less stringent than the weighty reasons normally required to justify sex discrimination does not mean that the justifications put forward for the rule should escape careful scrutiny. On analysis, it may indeed lack a reasonable basis. This case is different from Stec and Runkee in two important respects. First, they were concerned with non-means-tested benefits; CTC is of course means-tested, though not at subsistence level, and the other benefits to which the appellant was entitled were at subsistence level. And secondly, the justification advanced in each case was the historic need to cater for the disadvantage suffered by women in the workplace, in the first place by allowing them to retire with a state pension earlier than men, and in the second place by giving them a pension to compensate for the loss of their deceased husbands income on which they had usually been dependent. The margin lay in deciding when and how to remove the discrimination. We are not here concerned with the timing of transitional arrangements, but with a considered policy choice which could last indefinitely. The appellants case is simple (and skilfully deployed). He is responsible for looking after his children for three days a week. He is dependent upon subsistence level benefits: his incapacity benefit is deducted from his income support and his disability living allowance is to meet the particular needs arising out of his disability. He therefore has nothing with which to meet the needs of his children while they are with him. The mother could agree to share the CTC and the child benefit with him, but she does not have to do so. HMRC can give one of them the child benefit for one child and the other the benefit for the other child, but they cannot do this with the CTC. The court which made the order in the family proceedings has no power to order the mother to share the CTC with the father: the family courts powers to make periodical payments orders for the benefit of children were removed with the introduction of the child support scheme: see Child Support Act 1991, s 8(3). Splitting used to be possible under the fore-runner to income support and under the child tax allowance scheme, so it can be done. And in fact it is now possible to share Child Tax Benefit under the comparable scheme in Canada (in Australia, shared carers can each claim the full benefit). Comparisons with other European states are not helpful, because of their different approaches to the allocation of parental responsibility after separation and of their very different tax and social security systems. The parties have each done a considerable amount of work on the systems in other countries. The respondent has produced a Comparative Survey of Legislative Provisions governing the Allocation of Child Benefits in Shared Care Arrangements and the appellant has produced a Research Note into that survey. Of the 30 countries surveyed, only six provide for splitting child benefits between separated parents; of these, five provide for equal sharing and one provides for sharing in proportion to the time spent caring for the child. The difficulty, as the appellant points out, is knowing what is meant by a child benefit in the particular country and how it fits into their tax and social security systems as a whole. Interesting though this information is, it is hard for us to draw any conclusions from it as to the justification for the UK rule, other than that there is little European consensus about the merits of sharing the care of children, let alone about the merits of splitting state support for them. The respondents case is also simple (and skilfully deployed). The aim of CTC is to provide support for children. The principal policy objective is to target that support so as to reduce child poverty. The benefit attaches to the child rather than the parent. It is paid to the main carer because the main carer bears more of the everyday expenditure for the child and most of the capital expenditure on things such as clothes, shoes, sporting and leisure equipment, school trips and the like. Splitting the benefit would reduce the amount available to the main carer, who is usually the one less well placed to earn income, and might result in neither household being able to afford such items as clothes and shoes. Nor is it obvious how the means test should operate if the award is split. Should it be based on the main carers household income, or on the minority carers household income, or on both carers household income, or a pro rata award to each based on their household income? Unless based on the main carers income, the total amount payable would go down when the minority carers income went up, thus reducing the amount available to the main carer even before the benefit was split. Nor is it clear how the benefit should be apportioned between them, especially as shared care arrangements tend to vary over time, while CTC awards are made for a year at a time. There would inevitably be increased administrative complexity and costs. Given the overall limits on public expenditure, this would be likely to result in less money being available to support children. It would also have knock-on effects elsewhere in the system, for example for those benefits which are pass-ported by receipt of the full rate of CTC. The respondent also points out that the appellant is not attacking the no- splitting rule in every case, but only in cases such as his, where a substantial minority carer is dependent upon means-tested benefits. In other words, he is asking for an exception to be made to an otherwise justifiable rule. The more usual case of shared care is likely to involve a minority carer who is in full time work and a main carer who is not. It is well-established that bright line rules of entitlement to benefits can be justified, even if they involve hardship in some cases. Hence, this rule cannot be said to be unreasonable or manifestly without reasonable foundation. As to Hockenjos, the respondents primary case is that it was wrongly decided. Both Scott Baker LJ and Ward LJ based their decisions upon the view that the EU principle of equal treatment could not be frustrated and thus gave no weight to the margin of discretion. Arden LJ set out the right test, which was little different from the domestic test of Wednesbury unreasonableness (para 107) but then failed to apply it. It was unfair to criticise the Government for not addressing its mind to whether there was a viable alternative, as they clearly had done so when introducing the new CTC scheme. It was also wrong for Ward LJ to base his conclusion on the fact that the parents were not claiming the same benefit and thus competing for the same child premiums. In fact one was claiming jobseekers allowance and the other was claiming income support, both subsistence level means-tested benefits, to which additional payments for children could be made to one parent only, so the effect of the Court of Appeals decision was a double payment. Furthermore, as entitlement was linked to child benefit, once the father had claimed and been awarded the child benefit for one child, he also qualified for the additional allowance for that child. The respondents secondary case, if Hockenjos was rightly decided, is that this case can be distinguished, because it concerns a different test under the ECHR, a different benefit, consideration was given to the alternatives and separated parents are competing for the same benefit. Discussion I am a little sceptical about the objective of lifting the child from poverty or keeping him or her out of poverty. This is, of course, a laudable aim. But success in achieving it will depend upon how child poverty is defined, rather than upon the actual living standards of real children. Both this government and the last have committed themselves to abolishing or at least reducing child poverty. Precise targets are set out in the Child Poverty Act 2010. But the definitions in the Act all depend upon the relevant income group into which the household where the child lives falls. Thus, for example, for the target reduction of relative low income (in section 3), the household falls within the relevant income group if its equivalised net income is less than 60% of the median equivalised net household income for the year in question (equivalised means adjusted to take account of variations in household size and composition: s 7). Thus if support is targeted upon only one household, it will be much easier to say that a child has been lifted out of poverty than it would be if the support had to be split between two households. However, the statistical definition of child poverty may reflect a wider truth. If funds are targeted at one household, it is likely that a child living in that household will be better off than he or she would be if the funds are split between two households with modest means. The state is, in my view, entitled to conclude that it will deliver support for children in the most effective manner, that is, to the one household where the child principally lives. This will mean that that household is better equipped to meet the childs needs. It also happens to be a great deal simpler and less expensive to administer, thus maximising the amount available for distribution to families in this way. The rule is also linked to the move from tax allowances and social security benefits into a seamless tax credit system. When child additions to subsistence level benefits were decided on a week by week basis, it was practicable, although not easy, to divide them between two households which were claiming the same or essentially the same benefits. Once the benefit is payable, on a means tested but not subsistence basis, irrespective of the work status of the parents, it becomes much harder to split it between two households who may move in and out of work at different times and whose incomes may be very different. This brings with it all the problems of how to calculate the benefit mentioned earlier. It would also mean that the benefit available to the lower income main carer would go down when the higher income minority carers income went up. The ideal of integrating the tax and social security systems, so as to smooth the transition from benefit to work and reduce the employment trap, has been attractive to policy makers for some time. The introduction of CTC (and working tax credit) was a step in that direction. In my view it was reasonable for government to take that step and to regard the targeting of child support to one household as integral to it. It is also reasonable for a government to regard the way in which the state delivers support for children, and indeed for families, as a separate question from the way in which children spend their time. The arrangements which separated parents make for their children are infinitely various and variable. They depend upon a multitude of factors, such as the childrens ages and preferences, where they go to school, how close the parents live to one another, and what the parents can afford. Most parents can and do sort out these arrangements for themselves. Only a small minority have to have these imposed upon them by a court, and even then they are free to change them if they both want to do so. Some might think that the ideal solution would lie with restoring to the family courts the power to make appropriate orders to deal with such payments, either by ordering one parent to share it with the other, or by ordering a periodical payment to take account of the benefits which one parent receives. Then the order could be properly tailored to the different means available in each household, rather than divided according to an arbitrary criterion of time spent with each parent. It would not make sense to order a mother living on a low income to make a payment to a father living on a high income just because the children spent some of their time with him. The children would need the money more when they were living with their mother than when they were living with their father. But if the circumstances were the other way round, then of course it would make sense to order that the benefit be shared or even ceded entirely to a parent living at subsistence level. The difficult case is where both parents are living at subsistence level, because without the full amount of the benefit neither might be able to provide properly for the child. The less happy one of the parents was to share care with the other, the less likely it is that a satisfactory solution will be agreed. Unfortunately, the advent of the child support scheme has removed the possibility of doing justice from the courts. To restore it would obviously be the more rational solution to the problem under discussion. For all the reasons given, I conclude that the no-splitting rule is a reasonable rule for the state to adopt and the indirect sex discrimination is justified. Remedy Had I reached a different conclusion, it would have been necessary to consider the difficult question of remedy. It is difficult for several reasons, not least because this is a statutory appeal rather than judicial review, so that we are limited to upholding or setting aside the tribunals decision and if we set it aside to re-making it ourselves or sending it back to the tribunal to decide. If we were to disapply Rule 2.2 in reg 3 (para 7 above), the effect of section 7(2) of the 2002 Act would appear to be that, as the father was in receipt of a prescribed benefit, he would be entitled to CTC at the full rate if he were held to be responsible for the children during the period in question, even though the mother has already received it at that rate and there is no machinery for recovering any part of it from her. In other words, we would be disapplying a rule which has a discriminatory effect without any means of applying the only sensible alternative rule, which is to share the benefit between the parents. Section 7(2) is in primary legislation and cannot simply be ignored. Fortunately, we do not have to grapple with this conundrum, although of course that fact that it arises in this case would not have been a reason to hold that the impugned rule is justified. However I agree with the Upper Tribunal and the Court of Appeal that the rule is justified and would therefore dismiss this appeal. |
This is a challenge to the decision of 29 July 2014 by HM Treasury (HMT) to use National Savings and Investments (NS&I) to deliver the Government policy of Tax free Childcare (TFC), which I describe below (para 16). TFC is designed to replace the policy of employer supported childcare (ESC) under which the Government gives relief from tax and national insurance contributions to employers which support their employees with the cost of childcare. The challengers are (i) Edenred (UK Group) Ltd (Edenred) which provides services to employers who operate the ESC scheme on behalf of their employees and (ii) the Childcare Voucher Providers Association (CVPA) which is a trade association for providers of childcare vouchers. NS&I is a non ministerial Government department and executive agency of the Chancellor of the Exchequer. It is a retail savings and investments organisation which offers its products to United Kingdom customers. Its products are designed to enable the Government to borrow at a reasonable cost and in 2011 it had invested assets of about 105 billion from about 26m customers. Since 2011 it has obtained contributions towards its running costs by using its substantial infrastructure to process payments, manage accounts and provide associated support functions to other public bodies. Section 113 of the Financial Services Act 2012 gave NS&I a general power to enter into arrangements with public bodies to provide such services. NS&I outsourced its operational services and transferred its operational staff to a private sector provider in 1999. Its current outsourcing contract, which it entered into in 2013 and which has operated since April 2014, is with Atos IT Services Ltd (Atos). The Director of Savings, who is NS&Is chief executive, and its other civil servants are policy makers for the organisation but its operations, both dealing with customers and back office functions, including customer service, transaction management, printing, accounting, IT development and management, are provided by employees of Atos. Those services involve the use of Atos equipment and of premises leased or owned by Atos but those premises and equipment will be transferred to NS&I on termination of the arrangement. To allow NS&I to administer TFC it is necessary to amend the contract between NS&I and Atos. The Atos contract is not subject to this challenge but its proposed modification is. The challenge in summary is (i) that the proposed amendment to the Atos contract would be contrary to European Union procurement law, and (ii) that as a result the decision to use NS&I to deliver TFC is unlawful. The applicants seek relief in the form of declarations that the respondents decisions regarding the delivery of TFC are unlawful and an order restraining the respondents from giving effect to the modification of the Atos contract if their challenge is successful. In the meantime, the respondents are prevented by interim order from implementing the provision of services under TFC until further order. The challenge came before this court as an application for permission to appeal. As the matter required a prompt determination, the court heard both the application for permission to appeal and also the substantive appeal at the same time. At the heart of the challenge is the assertion that the proposed amendment of the contract between NS&I and Atos would involve the direct award of a valuable public contract without conducting a tender procedure contrary to the requirements of the EU procurement regime that was implemented by the Public Contracts Regulations 2006 (SI 2006/5) (the 2006 Regulations) and their successor regulations, the Public Contracts Regulations 2015 (SI 2015/102) (the 2015 Regulations), which implemented Directive 2014/24/EU (the 2014 Directive). The latter regulations came into force on 26 February 2015 (regulation 1(2)) after the challenged decision had been made and do not affect the validity of the Atos contract itself (regulation 118(5)), but regulation 72 of the 2015 Regulations, which deals with modification of contracts during their term, will govern the amendment of the Atos contract if the respondents proceed with that amendment. The applicants also assert more widely that the use by public bodies of contracts, such as that between NS&I and Atos, which provide both for outsourcing and for the extension of the outsourced services to other public bodies in future, would place the United Kingdom in breach of its obligations under article 56 of the Treaty on the Functioning of the European Union (the TFEU). The facts in more detail (i) The procurement of the contract between NS&I and Atos In July 2011 NS&I commenced procurement of a further contract for the outsourcing of its operational services. On 11 July 2011 HMT and NS&I held an industry day at the Royal Geographical Society at which, among others, Lord Sassoon, commercial secretary at HMT and Jane Platt, NS&Is CEO, presented to interested parties their proposals for the future of NS&I, including the business to business services which I discuss below, and the re tender of the outsourcing contract. On 22 November 2011 NS&I as contracting authority published a notice in the Official Journal of the European Union (2011) (S 224 363697). The notice advertised UK London: banking services and the contracting authority gave outsource services as the title to the contract. It explained that the contracting authority was purchasing on behalf of other contracting authorities and that the nature of the services was computer and related services. In its short description of the contract the notice described the role of NS&I and explained that it was now seeking to retender its operational services, which it described as: including all processing of customer interactions and servicing (eg sales, after sales management and payments including via telephone, internet and mail); service management; IT development and implementation; and other services (eg complaint handling, channel management, customer management, print and document management, customer market research and analysis, campaign management, compliance, management information etc), and other related ancillary services that support the business operation of NS&I. The text went on in a passage which is of significance in this appeal to describe NS&Is business to business services (which it called B2B services): In addition NS&I now delivers similar operational services (so called B2B services) to other public sector organisations. We intend to expand this B2B service during the lifetime of the contract to deliver to other organisations, potentially resulting in significant growth of the outsourced operational services. NS&I intends to structure the contract so that it may be used by other central government departments (including their executive agencies and non departmental public bodies) and by local authorities. NS&I also intends to permit the contractor to make the services provided under the contract available to private sector entities provided that this does not affect the provision of service to NS&I. The notice listed 50 entries from the common procurement vocabulary. In section II.2.1 the notice described the quantity or scope of the contract, which was to run for 96 months from the award of the contract and would be extendable for a further 36 months. It described the average estimated annual volumes for its 26m customers (excluding B2B services) as 14 15 billion of receipts and 12 billion of payments, involving 55m transactions and 4m telephone calls. It described the estimated contract range and value in these terms: Contract range up to approximately 2,000,000.000 GBP, with a likely contract range of approximately 1,250,000,000 and 150,000,000 GBP, depending upon the uptake of B2B services. Estimated value excluding VAT: Range: between 1,250,000,000 and 2,000,000,000 GBP. As the notice stated, NS&I adopted the competitive dialogue procedure under regulation 18 of the 2006 Regulations and the award criterion was the most economically advantageous tender in terms of the criteria stated in the invitation to tender and other relevant descriptive documents. NS&I issued a prospectus in November 2011 to provide potential bidders with the information they needed to submit a comprehensive electronic pre qualification questionnaire (PQQ). In that document NS&I explained that it had only 140 employed staff and that the workforce of 1,750 who implemented its plans worked for its outsource partner. It flagged up the importance of B2B services as a contributor to its running costs. It stated that its future strategy included implementing product change and developing and delivering new B2B opportunities. It also set out the three stages of the procurement process: (i) the PQQ to identify a maximum of five bidders which had the needed experience, financial strength and capability to deliver the required services, (ii) the invitation to submit an outline proposal to select a maximum of three bidders who would receive a full set of requirements, draft contract and other supporting material, and (iii) the invitation to tender (ITT) from which it would select the provider that offered the best solution for the lowest price. It envisaged extensive dialogue with bidders at the second and third stages. Ten organisations responded to the PQQ, which, among other things, required an organisation to have an annual turnover in excess of 1 billion, and, after evaluation, three organisations were shortlisted. On 2 April 2012 NS&I issued an invitation to participate in dialogue and from 1 May 2012 conducted a competitive dialogue with the remaining three bidders, who were given a full draft contract and due diligence material. Proposals to expand B2B services to other public sector bodies were discussed in three rounds of dialogue in May, June and October 2012. The ITT, which was finalised after dialogue with the three bidders and issued on 10 December 2012, contained the final contract and scoring guidance for the bidders. NS&I set out in Schedule 2.11 of the contract its requirements in relation to B2B services and in Schedule 9.4 it laid down the procedures for managing change which it envisaged would occur during the term of the contract. Schedule 2.11 required the parties to seek new B2B opportunities subject to the limitations set out in the OJEU notice (para 2.1). Paragraph 3.3 of that schedule set out the principles which were to govern the incorporation of a new B2B service into the agreement. Those principles included (i) that the agreement profit margin must not increase unless otherwise agreed by the parties, (ii) that, subject to (i), there must be no alteration of the allocation of risk, (iii) that where a new service was similar to existing services, the associated marginal cost and charges for delivery were to be used as the basis of the costs and charges for the new services, and (iv) that the term of any B2B services should not exceed the term of the agreement. Schedule 9.4 gave NS&I a wide discretion to reject any change and the provider a very limited right to reject such change (para 4). Paragraph 9 of that Schedule set out the procedure for amending the agreement, which provided for the approval or rejection of requests and a dispute resolution procedure. There were further controls over charges and costs within schedule 9.4 (para 7) and in Schedule 7.1. These provisions became part of the Atos contract. On 20 May 2013 NS&I awarded the contract to Atos. The contract provided that services would commence on 1 April 2014. In fulfilment of its obligation to seek new B2B opportunities (Schedule 2.11 para 2.1), Atos undertook to spend more than 21m on developing a B2B sales unit during the period of the contract (Schedule 4.1.11, para B3.4). On 26 June 2013 a notice of the award of the contract was published in the OJEU (2013) (S 124 213489) in which the total final value of the contract was stated as 660,000,000 but it was also stated that NS&I intended to expand the B2B service during the lifetime of the contract to other organisations, resulting in significant growth to the outsourced operational services. (ii) The TFC initiative TFC is a scheme to support working families with the costs of childcare. It gives the opportunity for parents to open a bank account, called a childcare account, for each of their children into which they, and other members of the family or employers, can pay money to be used for childcare costs. Those funds will make up 80% of the relevant childcare costs. The other 20%, which is the equivalent of basic rate tax relief, will be paid by the Government up to a maximum of 2,000 per child per year. The parents will use the funds in the childcare account to pay the registered childcare provider or providers of their choice. TFC, unlike ESC, will not necessarily involve employers in defraying childcare costs and it is envisaged that many more parents will be eligible for support than under ESC, including the self employed and those on the national minimum wage. NS&I estimates that around 1.9m families are potentially eligible for TFC and forecasts that about 1.2m families will have registered, giving rise to 1.6m accounts, by the fifth year of the operation of TFC. On 19 March 2013 HMT and HM Revenue and Customs (HMRC) announced the introduction of TFC. HMRC, like NS&I, is a non ministerial government department and, like both HMT and NS&I, is under the control of the Chancellor of the Exchequer. HMT has allocated money to HMRC to administer TFC, which it initially intended would be introduced in the autumn of 2015. HMT and HMRC consulted on the design and operation of TFC between August and October 2013. The applicants participated in that consultation, which proposed that TFC would be delivered through a competitive market in which the accounts were administered by private sector providers and that HMRC would have an active role in registering the parents, processing the 20% top up to childcare account providers, and checking compliance. In October 2013 NS&I approached HMT and HMRC offering to provide all TFC accounts and also other services, including the registration of parents, using its existing banking infrastructure, including online accounts and services, and its customer support network which Atos now operates. The Government was attracted by the NS&I option in part because it had the potential to enable a speedy implementation of TFC in accordance with the Governments proposed timetable and also because it offered a better defence against organised criminal activity to defraud TFC through the setting up of bogus account providers and childcare providers. On 17 March 2014 the Government announced that HMT and HMRC would use NS&I to provide and administer childcare accounts and supporting services. After a challenge by judicial review on the ground that the Government had not consulted on that delivery option, there was a further consultation. HMRC issued a further consultation paper on 23 May 2014 and published a prior information notice in the OJEU on 14 June 2014 to alert interested parties to the further consultation. In the consultation paper the Government invited comments on options to deliver TFC accounts in the public sector, either through NS&I or HMRC. It compared those options against three private sector options, namely (i) a single private sector account provider, (ii) a small fixed number of contracts for entities to become account providers, and (iii) an open market for account providers. On 14 July 2014 HMT and HMRC officials submitted their advice to ministers. In that submission they identified the five options for TFC. The officials identified seven criteria: (i) simple, (ii) efficient, (iii) competitive, (iv) secure, (v) responsive, (vi) speed of delivery, and (vii) ease of build. They stated that there was no unambiguously superior option and that ministers decision would depend upon how much importance they placed on each criterion. In their recommendations officials noted that NS&I performed well against the simple, efficient, speed of delivery and ease to build criteria and that the private sector options performed well on many of the criteria but less favourably on speed of delivery and ease to build criteria. On 29 July 2014 the Government announced that NS&I would provide and administer childcare accounts and supporting services in order to deliver TFC for HMRC. In their published response to consultation HMT and HMRC stated that: the government considered that the NS&I option had real and particular advantages in terms of simplicity for parents and childcare providers, offering security for parents through a trusted brand with all funds guaranteed by the government, and speed of delivery. The response concluded that while some of the other factors might arguably be said to tend in favour of other options, they did not outweigh the advantages of the NS&I option. Section 16(1) of the Childcare Payments Act 2014 (para 46 below) provides statutory authority for NS&I to provide childcare accounts. It is envisaged that most parents will manage their childcare accounts online using a modified version of NS&Is pre existing Direct Saver product, in accordance with the Governments digital by default policy. The mechanism by which the Government proposes to introduce TFC involves (i) a memorandum of understanding between HMRC and NS&I which sets out HMRCs requirements and (ii) a variation of the Atos contract by the inclusion of a new Schedule 2.16 which sets out in some detail what Atos must do to provide services to NS&I in order to meet those requirements. NS&I will be responsible for developing the web portal through which parents will obtain access to TFC, providing childcare accounts to parents, working out how much money is due to parents from HMRC and supporting parents, for example through call centres. The proposed contract variation has an initial term of five years and it is estimated that Atos will earn approximately 132.8m from the provision of its services in implementing TFC over that term. The applicants found on the estimated value of the contractual variation and the extensive amendments to the Atos contract in support of their submission that the Government was required by EU competition law to open the provision of TFC accounts to competition by an advertised procurement process. The legal proceedings On 27 August 2014 Edenred issued a claim under Part 7 of the Civil Procedure Rules and it and the CPVA also raised judicial review proceedings seeking declarations that the proposed arrangements were unlawful. Edenred claimed a remedy under the 2006 Regulations as an economic operator. The CVPA sought a remedy only in the judicial review. The two claims were consolidated by consent. On 30 September 2014, on Edenreds initiative, Leggatt J ordered (i) an expedited trial of the Part 7 action limited to specified grounds of claim and (ii) that the judicial review and the remaining grounds of the Part 7 action be stayed. As a result, although the applicants grounds of appeal sought to challenge the refusal to lift the stay on the judicial review, only the grounds which were the subject of the expedited trial are available as the basis of the remedies which the applicants seek. On 27 October 2014 Leggatt J pronounced an interim order that prevented the respondents from implementing the provision of services under the TFC scheme until further order. Subsequent orders have kept that interim relief in force. After an expedited trial which took place between 24 and 28 November 2014, Andrews J issued a judgment dismissing the grounds of claim. She held (i) that the amendment of the Atos contract was not contrary to EU procurement law, (ii) that the proposed arrangements between HMRC and NS&I did not constitute a public services contract under the 2006 Regulations or an arrangement which was subject to article 56 of TFEU, and (iii) that in any event Edenred had not established that it had suffered loss as a result of any breach of the 2006 Regulations or article 56 of TFEU. The applicants appealed. On 31 March 2015 the Court of Appeal (Sir Terence Etherton C, Underhill and King LJJ) dismissed the appeal, holding that the amendment of the Atos contract and the memorandum of understanding between HMRC and NS&I would not be unlawful. The Court of Appeal did not rule on the question of remedy if there were an illegality or on whether the stay should be lifted in the judicial review action. Discussion The principal purpose of EU procurement law, to which this challenge relates, is to develop effective competition in the field of public contracts: Sintesi SpA v Autorit per la Vigilanza sui Lavori Pubblici (C 247/02) [2004] ECR I 9215, para 35. Thus if a public body decides to obtain services by a public contract, and the contract exceeds the prescribed threshold (currently 134,000 for public service contracts awarded by central government authorities), the public body must advertise the opportunity and follow fair and transparent procedures ensuring equality of treatment, to enable potential service providers to compete for the work. The recitals in the latest EU legislation, the 2014 Directive, refer to the goals of improving efficiency in public spending, facilitating the participation of small and medium enterprises, and promoting smart, sustainable and inclusive growth, including innovation. Having regard to the importance of this competition policy, the case law of the Court of Justice of the European Union (CJEU) has consistently stated that provisions that authorise derogations from the rules intended to ensure the effectiveness of Treaty rights in relation to public contracts must be interpreted narrowly. See, for example, Commission of the European Communities v Italian Republic (C 385/02) [2004] ECR I 8121, para 19; Commission of the European Communities v Spain (C 84/03) [2005] ECR I 139, para 58. Amendments to an existing public contract will fall within the procurement regime and be treated in substance as the award of a new contract if they involve a material variation of the contract. Thus the central question in Edenreds challenge is whether the proposed amendments of the Atos contract amount to a material variation. Although Edenred raised its challenge under the 2006 Regulations, both parties referred the court to the 2014 Directive and the 2015 Regulations as the updated statements of EU procurement law. Recital 2 of the 2014 Directive spoke of the incorporation of certain aspects of related well established case law of the CJEU. I agree that it is appropriate to test the validity of the proposed amendment of the Atos contract by reference to the 2015 Regulations. See para 6 above. In this judgment I therefore refer principally to the 2015 Regulations but use the case law and the 2014 Directive as aids to their interpretation. Regulation 72 of the 2015 Regulations sets out six circumstances (or cases) in which a contracting authority may modify a public contract without a new procurement. Two of those cases are relevant. I will examine, first, the case in which the modifications, irrespective of their value, are not substantial (regulation 72(1)(e) and (4)) before turning, secondly, to the case which found favour with the Court of Appeal, namely that the modifications, irrespective of their monetary value, had been provided for in the initial procurement documents in clear, precise and unequivocal review clauses (regulation 72(1)(a)). Whether the modifications are substantial extending the scope of the contract Regulation 72(1) provides: Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Part in any of the following cases: (e) where the modifications, irrespective of their value, are not substantial within the meaning of para (8). Regulation 72(8) provides: A modification of a contract or a framework agreement during its term shall be considered substantial for the purposes of paragraph (1)(e) where one or more of the following conditions is met: the modification renders the contract or framework (a) agreement materially different in character from the one initially concluded; (b) the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates (i) than those initially selected, (ii) allowed for the acceptance of a tender other than that originally accepted, or (iii) attracted additional participants procurement procedure; (c) the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement; (d) framework agreement considerably; the modification extends the scope of the contract or the in Those conditions derive from and codify the jurisprudence of the CJEU in Pressetext Nachrichtenagentur GmbH v Austria (C 454/06) [2008] ECR I 4401, paras 34 37. At an earlier stage in the proceedings the applicants had argued that the modifications, if part of the initial procurement procedure, would have allowed other candidates to be admitted (condition (b) above) and that the modifications had changed the economic balance of the contract (condition (c) above). The applicants no longer advance those submissions, correctly in my view in the light of the findings of fact of Andrews J, particularly at paras 119 123 and 132 on condition (b) and 133 139 on condition (c). Now, the applicants confine their challenge under this heading to condition (d) above, submitting that the amendments to the Atos agreement amount to a considerable extension of the scope of the contract, in the words of the CJEU in Pressetext (para 36), to encompass services not initially covered. I am not persuaded that this is so. The contract which NS&I entered into with Atos under the procurement which commenced in 2011 was to provide NS&I with the operational services that would enable it both to perform its established retail banking and investment functions and also to expand its B2B services up to the 2 billion maximum envisaged in the OJEU notice (paras 8 and 9 above). That is the contract which the economic operators competed with each other to win. The respondents required bidders to have the financial strength and other capabilities to achieve that role. While the initial value of the contract which was stated in the award of contract notice was 660,000,000 (para 15 above), the procurement process and the contract envisaged the expansion of NS&Is business and required the outsource partner to provide the operational services to achieve that expansion. That was the object of the contract; it was clearly stated in the OJEU notice. Economic operators can have been in no doubt as to the extent of the services they might have to provide to NS&I, albeit that they would not know the public bodies to whom NS&I would provide B2B services or the public policies which the future B2B services would support. Mr Coppel QC for the applicants relied on the judgment of the CJEU in Commission of the European Communities v Federal Republic of Germany (C 160/08) [2010] ECR I 3713 to support his submission that the modification to accommodate TFC extended the scope of the Atos contract because it encompassed services not initially covered. But in my view that case does not assist him because, in contrast with the present case, the initial contracts for the provision of public ambulance services, which the public authorities of the Lnder entered into, covered defined territories and did not envisage extension of those services into other territories or require at the outset that the bidders had resources to cover such extensions. Similarly, I consider that Commission of the European Communities v French Republic (C 340/02) [2004] ECR I 9845 does not assist him as it involved a three stage scheme of works in which only the first stage had been the subject matter of the contract. The court held (paras 34 36) that the contract could not be extended by an option to carry out a separate phase of works because procurement law required both the subject matter of each contract and the criteria governing its award to be clearly defined. Commission of the European Communities v Kingdom of Spain (C 423/07) [2010] ECR I 3429, which concerned the award of additional motorway works that had not been included in the object of the contract described in the OJEU notice, also falls to be distinguished again because in the present case the OJEU notice defined the subject matter of what became the Atos contract so as to include the expansion of banking and accounts services to meet NS&Is aspirations for its B2B business. I do not accept that one should read the prohibition from modifying a contract to encompass services not initially covered as banning the modification of a public contract which extends the contracted services beyond the level of services provided at the time of the initial contract if the advertised initial contract and related procurement documents envisaged such expansion of services, committed the economic operator to undertake them and required it to have the resources to do so. The court must look to the OJEU notice and the other procurement documents, including the contract contained in the ITT, to ascertain the nature, scale and scope of the operational services that the Atos contract was set up to provide. In short, the question is whether the services were covered by the contract resulting from the procurement between 2011 and 2013, including its provisions for amendment of the contract. Were it otherwise, it is difficult to see how a Government department or other public body could outsource services that were essential to support its own operations and accommodate the occurrence of events and the changes of policy that are part of public life. There may be circumstances in which a court could conclude that a public authority had designed a contract as a means of avoiding its obligations under EU law. In such cases the contract might be open to challenge under EU law as an abuse of right. But here there is no challenge to the validity of the Atos contract itself. Edenred goes no further than to suggest that public authorities could use contracts framed in this way as a device for avoiding their public procurement obligations by allowing for the future provision of unspecified services of a much greater value. Whether or not that is so, the focus must be on the particular contract. The scale and nature of NS&Is stated aspirations for the use of its infrastructure and other resources in providing B2B services to public sector bodies as well as its own retail financial services, which the Atos contract was designed to support, appear to be within a reasonable compass. As I have said, this is an outsourcing contract by which NS&I obtains operational services to enable it to provide its retail banking and investment services. NS&I has sought to expand its business and obtain contributions towards its running costs by making variants of such banking services available to public sector bodies. In particular it has offered its banking infrastructure, including its banking software or banking engine, to provide account management, payment processing, and ancillary services. It advertised the outsourcing contract with the specified contract range of 1.25 billion to 2 billion. The Atos contract limits the scope of its modification to the terms of the OJEU notice, including the upper limit of that financial range. The essential nature of the operational services that Atos provides is not altered by the proposed modification. Andrews J found as fact (para 112): The nature of the operational services that Atos will be providing to support the delivery of childcare accounts is essentially the same as the nature of the services which are supplied by it to NS&I for existing banking, accounting and payment products and which would have to be supplied for any new product delivered by NS&I, whether or not it was a new type of savings account to raise money for HMT or a bank account to be utilised by another government department or a payment service offered to another government department akin to the ELPS [which is the Equitable Life Payment Scheme that NS&I operates for HMT]. As I discussed in para 13 above, NS&I also included provisions in the Atos contract that restrict the scope of amendment to ensure that such modification does not alter the economic balance of the contract or increase the profit margin available to Atos. In these circumstances I am satisfied that the proposed amendment of the Atos contract to enable NS&I to provide the TFC services will not considerably extend the scope of that contract in terms of regulation 72(8) of the 2015 Regulations and that it therefore does not involve substantial modifications under regulation 72(1)(e). The applicants challenge therefore fails. Clear, precise and unequivocal review clauses That is sufficient to determine the appeal. But it is appropriate that I also comment on the applicants challenge to the conclusion of the Court of Appeal which was based on regulation 72(1)(a). This regulation, which follows the wording of article 72(1)(a) of the 2014 Directive, provides: Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Part in any of the following cases: (a) where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses or options, provided that such clauses (i) state the scope and nature of possible modifications or options as well as the conditions under which they may be used, and (ii) do not provide for modifications or options that would alter the overall nature of the contract or the framework agreement; The regulation appears to draw on CAS Succhi di Frutta v Commission of the European Communities (C 496/99) [2004] ECR I 3801, in particular at paras 111 and 118. But it is not simply a codification of prior CJEU case law. There are four matters in this regulation which merit comment. First, as in regulation 72(1)(e), the monetary value of the modifications is irrelevant. Secondly, the modifications must have been provided for in the initial procurement documents. Thirdly, the review clauses which authorise the modifications must achieve a required degree of specificity. Fourthly, the review clauses cannot authorise modifications that would alter the overall nature of the contract. No more need be said about the first matter. In relation to the third matter, it seems to me that where, as in this case, the contracting authority has adopted the competitive dialogue procedure under regulation 18 of the 2006 Regulations (or now regulation 30 of the 2015 Regulations), the initial procurement documents include the documents which were issued to the selected bidders. The definition of procurement document in regulation 2 of the 2015 Regulations includes the proposed conditions of contract and the epithet initial in regulation 72(1)(a) is in my view simply a reference to the procurement documents which were available in the initial procurement of the contract which is the subject of the modifications. The fourth matter, the requirement that the overall nature of the contract is not altered, which is a formula used also in regulation 72(1)(c) and 72(5), appears as a matter of language to be a more liberal test than the test in regulation 72(8)(d) of extending considerably the scope of the contract. But the two tests could overlap if the extension of scope was of such an extent that it altered the overall nature of the contract. In my view the most significant restriction in this regulation is the degree of specification that it requires in the review clause. The formula, clear precise and unequivocal reflects the jurisprudence of the CJEU on what the principle of transparency requires: CAS Succhi di Frutta at para 111. The Court of Appeal held that the contract amendment provisions in the draft contract which NS&I gave the three bidders and which ultimately appeared in the Atos contract were sufficiently clear, precise and unequivocal when construed in their context. The contract envisaged the extension of the operational services which Atos provides to NS&I to enable it to expand its B2B services to other public bodies. The restrictions in Schedule 2.11 of the Atos contract (a) confined the B2B opportunities to those within the scope of the OJEU notice and (b) set out the principles that governed the incorporation of a new B2B service into the agreement, inter alia restricting any increase in Atos profit margin and prohibiting the alteration of the allocation of risk. See para 13 above. I incline to the view that these restrictions, in their contractual context were sufficiently defined to meet this regulation 72(1)(a) criterion. But the nature of the review clauses which the regulation covers is open to debate. Recital 111 of the 2014 Directive states: Contracting authorities should, in the individual contracts themselves, have the possibility to provide for modifications to a contract by way of review or option clauses, but such clauses should not give them unlimited discretion. This Directive should therefore set out to what extent modifications may be provided for in the initial contract. It should consequently be clarified that sufficiently clearly drafted review or option clauses may for instance provide for price indexations or ensure that, for example, communications equipment to be delivered over a given period continues to be suitable, also in the case of changing communications protocols or other technological changes. It should be possible under sufficiently clear clauses to provide for adaptations of the contract which are rendered necessary by technical difficulties which have appeared during operation or maintenance. It should also be recalled that contracts could, for instance, include both ordinary maintenance as well as provide for extraordinary maintenance interventions that might become necessary in order to ensure continuation of a public service. The recital gives as examples of the envisaged review clauses provisions allowing for price indexation, or adjustments for technological change and for maintenance. Those examples are not exclusive but they may indicate the general nature of the modifications that regulation 72(1)(a) envisages. It seems clear from the CJEUs judgment in CAS Succhi di Frutta at para 126 that the regulation would extend to a provision or clause such as for the substitution of fruit which was in issue in that case. The regulation also requires specification of the scope and nature of possible modifications and the conditions under which they may be used. I am not persuaded that the nature of the review clauses is acte clair. But, for the reasons already set out, it is not necessary to decide these matters in order to determine the appeal. The appellants alternative argument I can deal briefly with the applicants alternative argument that there was in substance a public service contract between HMRC and Atos. The applicants did not challenge the respondents assertion that the proposed memorandum of understanding between HMRC and NS&I is not a contract in domestic law but a means by which public funds passing between two connected public bodies and their use can be accounted for in a transparent way. But they founded on section 16 of the Childcare Payments Act 2014 (CPA) which provides: (1) Childcare accounts may be provided by any of the following the Commissioners for Her Majestys Revenue and (a) Customs, (b) a person or body with whom the Commissioners have entered into arrangements for the provision of childcare accounts, and (c) (the Director). [ie NS&I] if the Treasury so determine, the Director of Savings (2) If the Director provides childcare accounts, the Director must in doing so act in accordance with any arrangements between the Director and the Commissioners with respect to the provision of childcare accounts. The applicants submitted that what was proposed was in substance a public service contract between HMRC and Atos because (a) most of the provisions of the proposed memorandum of understanding between HMRC and NS&I were repeated in the proposed Atos contract variation, (b) Atos would provide the TFC services through its staff using equipment that it would purchase or develop, (c) HMRC would be the service recipient of the B2B services and had discussed them directly with Atos and (d) section 16 of the CPA imposed a legal obligation on NS&I to comply with its memorandum of understanding with HMRC. I am satisfied that there is nothing in this alternative argument. First and foremost, it ignores the background that NS&I is an existing public body with an extensive and established remit, which is quite separate from the TFC scheme, and that it is seeking to use its outsourced resources to provide B2B services to other public bodies. That context is part of the substance of the proposed arrangement and there is no legal basis for airbrushing NS&I out of the picture. I agree with the Court of Appeal (para 58) that the memorandum of agreement between HMRC and NS&I and the contract between NS&I and Atos are legally distinct. It is NS&I and not HMRC that can enforce the Atos contract. Secondly, it misinterprets section 16(2) of the CPA, which prevents NS&I from providing childcare accounts except by arrangement with HMRC. That subsection is simply a limitation on NS&Is power so that it cannot provide the accounts independently from HMRC and is not intended to give legal effect to the memorandum of understanding. The purpose of such memoranda of understanding between public bodies, as Andrews J explained in para 80 of her judgment, is to set out the services that those responsible to Parliament for the expenditure of public money can expect to receive in return for the charges levied on them by the public sector provider of the services and what those charges are. As she stated, a memorandum of understanding has to be capable of being torn up and replaced at a moments notice with no legal repercussions, in order to respond to changes in policy. Section 16 of the CPA does not change its nature. Thirdly, under any B2B scheme a public body will be the service recipient but it will receive the services from NS&I; the fact that the service recipient discussed those services with Atos as the outsourced provider of operational services to NS&I does not alter the substance of the transaction. Other matters As I conclude that the respondents are not in breach of EU procurement law, no question of the breach of article 56 of the TFEU arises. Further, having reached the view that the applicants challenge fails, there is no need to address their arguments about their entitlement to remedies. Conclusion I would grant the applicants permission to appeal but would dismiss their appeal. I would also make an order setting aside the interim order which prevents the respondents from implementing the TFC scheme. |
This is an appeal from an interlocutor of the First Division of the Inner House of the Court of Session (the Lord President (Hamilton), Lord Kingarth and Lord Brodie) of 10 September 2010: [2010] CSIH 78, 2010 SLT 1047, 2011 SC 70. By that interlocutor the First Division allowed a reclaiming motion by Blajosse Charlotte Eba against an interlocutor of the Lord Ordinary (Lord Glennie) dated 31 March 2010: [2010] CSOH 45, 2010 SLT 547. It refused a cross appeal against that interlocutor by the Advocate General for Scotland, representing the Department for Work and Pensions. The issue with which it was concerned was the scope of the remedy of judicial review in the Court of Session of decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) which are excluded from review by way of an appeal. The Lord Ordinary had dismissed Ms Ebas petition for judicial review of a decision of Judge DJ May QC, sitting as a judge of the Upper Tribunal, dated 6 February 2009. Judge May had refused her application for permission to appeal to the Upper Tribunal against the refusal on 27 January 2009 by the First tier Social Entitlement Chamber of her appeal against the refusal by the Department on 11 February 2008 of her claim to disability living allowance. The First Division, reversing the decision of the Lord Ordinary, held that the decision of the Upper Tribunal on this matter was amenable to judicial review under the supervisory jurisdiction of the Court of Session and that the grounds on which it could be reviewed were not subject to any limitation on policy or discretionary grounds: para 65. Ms Eba had also sought judicial review of the decision by the First tier Tribunal on 27 January 2009 to refuse her application for permission to appeal to the Upper Tribunal. Section 11(3) of the 2007 Act provides that the right to appeal to the Upper Tribunal may be exercised only with permission. Section 11(4) provides that permission may be given by the First tier Tribunal or the Upper Tribunal. But, as there was an alternative remedy against the decision of the First tier Tribunal because permission could also be sought from the Upper Tribunal, the focus of attention throughout these proceedings has been on the decision of the Upper Tribunal to refuse permission: see the Lord Ordinary, 2010 SLT 547, para 1. It should be noted that there was no right of appeal to the Court of Session against the Upper Tribunals decision to refuse permission, as section 13(1) of the 2007 Act provides that the right to appeal to that court on any point of law arising from a decision of the Upper Tribunal does not extend to an excluded decision. Section 13(8)(c) provides that for the purposes of section 13(1) an excluded decision includes any decision of the Upper Tribunal on an application under section 11(4) for permission to appeal. So the only way that unappealable decisions of that kind would be open to challenge in Scotland would be by way of judicial review in the Court of Session under the supervisory jurisdiction of that Court. The issues The appeal by the Advocate General in Ms Ebas case was heard together with appeals by the applicants against the decision of the Court of Appeal in R (Cart) v Upper Tribunal [2010] EWCA Civ 859, [2011] 2 WLR 36, [2011] QB 120 and that by Sullivan LJ in MR (Pakistan) v Upper Tribunal [2010] EWHC 3558 (Admin) which raised the same issue. In Cart the Court of Appeal held that the unappealable decisions of the Upper Tribunal were amenable to the supervisory jurisdiction of the High Court in those cases only where the Upper Tribunal had exceeded its own jurisdiction in the sense understood prior to the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 or where it conducted the hearing so unfairly as to render its decision a nullity: [2011] 2 WLR 36, para 37. In setting the boundaries of the supervisory jurisdiction in this very narrow way in relation to the Upper Tribunal, the Court of Appeal in Cart applied the decision in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003]1 WLR 475. In that case the Court of Appeal held that the supervisory jurisdiction was not available for the review of decisions of the county courts, save only in very rare and exceptional circumstances. These were where it was sought on the ground of an absence of jurisdiction as opposed to a mere error of law, or where there had been a procedural irregularity such that the applicant had been denied a fair hearing. In MR (Pakistan) Sullivan LJ held that the reasoning in Cart, in which the decision that was under review came from the Social Entitlement Chamber, applied to unappealable decisions of the Immigration and Asylum Chamber of the Upper Tribunal too. The Lord Ordinary in Ms Ebas case followed the reasoning of the Divisional Court in Cart: 2010 SLT 547, para 76. The Advocate General joined with the Secretary of State for Justice, the Secretary of State for the Home Department and the Child Maintenance and Enforcement Commission in supporting the decision of the Court of Appeal in Cart and of the High Court in MR (Pakistan), and there is much that is common ground between all three appeals. But a separate judgment is needed in Ms Ebas case in view of the questions that her case raises that are of particular interest in Scotland. The principal issue in her case relates to the grounds on which a decision of the Upper Tribunal to refuse permission to appeal under section 11(4) of the 2007 Act is amenable to the supervisory jurisdiction of the Court of Session. Ms Eba submits that unappealable decisions of the Upper Tribunal are amenable to the supervisory jurisdiction of the Court of Session on the grounds applicable to public tribunals in general which, she maintains, are without limit and have never been, and should not be, circumscribed. This issue lies at the heart of the relationship between the Court of Session and the new system for specialist tribunals which was created by the 2007 Act. On the one hand there is the rule of law, which is the basis on which the entire system of judicial review rests. Wherever there is an excess or abuse of the power or jurisdiction which has been conferred on a decision maker, the Court of Session has the power to correct it: West v Secretary of State for Scotland 1992 SC 385, 395. This favours an unrestricted access to the process of judicial review where no other remedy is available. On the other hand there is the principle of finality. There is obvious merit in achieving finality at the tribunal level in the delivery of administrative justice. The new structure introduced by the 2007 Act lends force to this argument. The importance of the issue is not, of course, confined to Scotland. The new, simplified statutory framework for tribunals which the 2007 Act created extends to England and Wales and to Northern Ireland too. The provisions of section 11 as to the right to appeal to the Upper Tribunal with permission (or, in Northern Ireland, leave) on any point of law arising from a decision made by the First tier Tribunal apply to those jurisdictions as well. The provisions of section 13(1) and section 13(8)(c), which exclude from the right of appeal under section 13(2) decisions of the Upper Tribunal to refuse permission to appeal to the Court of Session, apply also to refusals of permission to appeal to the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland. There are however two further issues which need to be considered in Ms Ebas case. The first arises because there are significant differences between the circumstances in which the remedy of judicial review is available in England and Wales and Northern Ireland and the right of the citizen to invoke the supervisory jurisdiction of the Court of Session in Scotland. The first question, then, is whether in Scotland too the scope for judicial review of unappealable decisions of the Upper Tribunal should be restricted in some way. The Advocate Generals position is that the intention of Parliament was that the Upper Tribunal should be amenable to judicial review to the same extent in the Court of Session as in the High Court in England, and that the First Division of the Court of Session was wrong to hold otherwise. For Ms Eba it is submitted that this argument should be rejected as, whatever may be held to be the position in England, the suggestion that the grounds of judicial review of decisions of the Upper Tribunal should be restricted in Scotland is not supported by authority and to adopt it would destroy the consistency of Scots law. The position in Scotland is also more complicated than that which arises in England and Wales. The 2007 Act can be said to have effected a complete re ordering of the system of administrative justice in England and Wales. But that is certainly not true of Scotland. There are a large number of tribunals and other similar bodies which sit in Scotland which have not been included within the new structure. They are mainly confined to the Scottish tribunals that deliver administrative justice in matters devolved under the Scotland Act 1998 whose functions cannot be transferred to either the First tier or the Upper Tribunal by order of the Lord Chancellor: section 30(5)(a). Various Scottish tribunals which exercise functions in relation to devolved matters have been restructured under legislation that applies only in Scotland. These measures include the Mental Health (Care and Treatment) (Scotland) Act 2003, the Planning etc (Scotland) Act 2006, the Judiciary and Courts (Scotland) Act 2008 and the creation of Additional Support Tribunals under the Education (Additional Support for Lifelong Learning) (Scotland) Act 2004. However, at least one tribunal exercising functions in Scotland in relation to reserved matters the Pensions Appeal Tribunal remains at first instance mainly outwith the structure of the 2007 Act. So too do the Employment Tribunals and the Employment Appeal Tribunal. So there is this further question. Should there be a different approach to the grounds on which judicial review of unappealable decisions is available in the case of tribunals over which the supervisory jurisdiction of the Court of Session is exercised that are within the scheme of the 2007 Act from those that lie outside it? Background A comprehensive description of the statutory framework that the 2007 Act provides is to be found in the opinion of the First Division which was delivered by the Lord President (see 2011 SC 70, paras 2 4) and in the judgment of Lady Hale in the cases of Cart and MR (Pakistan) in this Court: [2011] UKSC 28, paras 22 29. It is necessary, in order to set the scene for the purposes of this judgment, only to sketch in a few details. The 2007 Act was designed to implement proposals in a report by a committee chaired by Sir Andrew Leggatt, Tribunals for users One System, One Service (DCA 2001). It sets out a two tier structure which comprises a First tier Tribunal, into which were transferred most existing first instance tribunals exercising functions in relation to reserved matters, and an Upper Tribunal whose function is primarily to deal with appeals from the First tier Tribunal but also to take over the work of some first instance tribunals from which there was no appeal. Both the First tier Tribunal and the Upper Tribunal are composed of a number of separate Chambers into which the work of the existing tribunals was grouped according to subject matter. One of the aims of this reform, as described in para 6.30 of the Leggatt Report, was to create a comprehensive and systematic right of appeal on points of law from the First tier Tribunal to the Upper Tribunal and from there to the Court of Session or the Court of Appeal. Any point of law was to be open to challenge before experts within the Tribunals system, and the senior members of the Upper Tribunal were to be judges. They were to include judges of the Court of Session, judges of the Court of Appeal in England and Wales, Lord Justices of Appeal in Northern Ireland and puisne judges of the High Court in England and Wales and Northern Ireland: see section 6(1)(a) (d). In para 6.30 the Leggatt Report added this comment: It would be significantly to users benefit to use that appeal system, rather than have recourse to the more complicated procedures and more limited remedies of judicial review. We think that this latter possibility should be excluded. Slightly different arguments apply to the appellate Division and first tier tribunals. In para 6.31 it offered two options for the removal of judicial review from the Upper Tribunal. One was to constitute all the appeal tribunals a superior court of record, as had already been done with the Employment Appeal Tribunal and the Transport Tribunal. The other was to exclude judicial review by express statutory provision. It recognised that the option of designating most of the First tier Tribunals as superior courts of record was manifestly inappropriate. The recommendation in their case was a statutory provision prohibiting review of their decisions where there was a right of appeal which had not been exercised. In the event the 2007 Act does not contain any provision which excludes judicial review of decisions of either the First tier or the Upper Tribunal. It provides instead that the Upper Tribunal is to be a superior court of record: section 3(5). This is a term that is unknown to the law of Scotland and has never been applied to any of the Scottish courts. But it is to be found in legislation relating to courts in other parts of the United Kingdom and to the Supreme Court of the United Kingdom itself: Constitutional Reform Act 2005, section 40(1). It is used there to indicate a court that keeps a permanent record of its acts and proceedings and has power to punish for contempt. The Divisional Court in R (Cart) v Upper Tribunal held that section 3(5) of the 2007 Act did not have the effect of excluding the judicial review jurisdiction from the Upper Tribunal, whatever the historic scope of the expression superior court of record might be: [2009] EWHC 3052 (Admin), [2011] QB 120, paras 31 32. This was because the supervisory jurisdiction can only be ousted by the most clear and explicit words: R v Medical Appeal Tribunal, Ex p Gilmore [1957] 1 QB 574, 583, per Denning LJ. Laws LJ said that it was a constitutional solecism to suggest that the effect of section 3(5) was to exclude it by implication: para 38. Counsel for the Advocate General did not challenge that conclusion. But it was said to be an indicator of an intention by Parliament, when taken together with the seniority of the judges who were to sit on it, that the Upper Tribunal was to take its place alongside courts of the level of importance of the High Court in England and Wales and Northern Ireland and not to be an inferior tribunal. The 2007 Act sets out a carefully organised system for the review of decisions and appeals. Review of decisions of the First tier Tribunal and of the Upper Tribunal is provided for by sections 9 and 10. Section 11 provides for a right of appeal to the Upper Tribunal, with permission or leave, on any point of law arising from a decision made by the First tier Tribunal other than an excluded decision. A list of excluded decisions is set out in section 11(5), which has been supplemented by paragraph 2 of the Appeals (Excluded Decisions) Order 2009 (SI 2009/275) as amended. The same formula is repeated in section 13, which provides for a right of appeal to the Court of Session and the equivalent courts in England and Wales and Northern Ireland. As already noted, permission or leave is required. In the case of appeals under section 13, this can be given either by the Upper Tribunal or the relevant court. A list of the decisions that are excluded decisions for the purposes of this section is set out in section 13(8), which has also been supplemented by paragraph 3 of the Appeals (Excluded Decisions) Order 2009 as amended. It includes the following: (a) any decision of the Upper Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (c 29) (appeals against national security certificate), (b) any decision of the Upper Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (c 36) (appeals against national security certificate), (c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal), (d) a decision of the Upper Tribunal under section 10 (i) to review, or not to review, an earlier decision of the tribunal, (ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, or (iii) to set aside an earlier decision of the tribunal. (e) a decision of the Upper Tribunal that is set aside under section 10 (including a decision set aside after proceedings on an appeal under that section have begun), or (f) any decision of the Upper Tribunal that is of a description specified in an order made by the Lord Chancellor. Decisions of the descriptions in section 13(8)(a) and (b) are decisions from which, under the legislation referred to, there was no statutory right of appeal. Counsel for the government accepted that they are subject to the ordinary process of judicial review in the sense indicated by Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Ms Ebas appeal is directed to decisions of the description set out in section 13(8)(c). The Advocate General submitted in his cross appeal to the Inner House that decisions of the Upper Tribunal were not in any circumstances amenable to the supervisory jurisdiction of the Court of Session: 2011 SC 70, para 13. The Lord President devoted much of his opinion to a discussion of that argument, which was rejected on the ground that the jurisdictional rule in Scotland pointed to an exclusion of the supervisory jurisdiction only where the subject body was a manifestation of the Court of Session or akin to such a manifestation, which the Upper Tribunal was not: para 54. The focus of the argument has accordingly shifted very considerably from that which was considered in the Inner House. It is no longer maintained that the supervisory jurisdiction has been excluded altogether. The question is as to the extent, if at all, it has been restricted in the case of decisions of the Upper Tribunal that are unappealable. There is one other provision in the 2007 Act which should be mentioned. Section 13(6) provides that the Lord Chancellor may, as respects an application for permission or leave to appeal to the Court of Appeal in England and Wales or Northern Ireland from any decision of the Upper Tribunal on an appeal under section 11 from a decision of the First tier Tribunal, make provision by order for permission or leave not to be granted on the application unless the Upper Tribunal or the relevant court considers (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal. An order to this effect has been made by the Lord Chancellor: see The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008 no. 2834), which came into force on 3 November 2008. The 2007 Act did not confer an equivalent power on the Lord President in relation to Scotland, perhaps because the question of second appeals was being considered in the Scottish Civil Courts Review that was then taking place under the Chairmanship of Lord Gill. But a provision broadly to the same effect as section 13(6) was made by SSI 2008/349 with effect from 3 November 2008 by inserting into the Rules of the Court of Session 1994 a new rule 41.59. It provides: (1) This rule applies where an application is made to the court under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal a decision of the Upper Tribunal which falls within section 13(7) of that Act and for which the relevant appellate court is the Court of Session. (2) Permission shall not be granted on the application unless the court considers that (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the appeal. As a result the position in relation to the granting of permission for a second appeal is now the same in the Court of Session as it is in the High Court under the statute. But it should be noted that the Scottish Rule of Court does not apply to applications made to the Upper Tribunal as opposed to the Court of Session, while the Order in other parts of the United Kingdom applies to applications to either the Upper Tribunal or the Court of Appeal. Some areas of common ground Mr Mitchell QC, in his helpful submissions for Ms Eba, drew together various matters relating to the position in Scotland which he said appeared to be common ground between the parties. It is worth repeating some of them, as they help to put into focus the points on which the parties are divided. First, the issue before this Court is confined to those decisions of the Upper Tribunal which are unappealable because, in the language of section 13(8) of the 2007 Act, they are excluded decisions. The effect of the exclusion is that these decisions are not amenable to the process of internal review within the tribunal system under the statute, which has not provided any alternative remedy. So, as Mr Mitchell submitted, it is either judicial review or it is nothing. Second, the question for decision is not whether judicial review is available at all. In the Inner House the Advocate General submitted that, in view of its constitution, jurisdiction and powers and its relationship with the Court of Session, the Upper Tribunal should properly be regarded as having a status so closely equivalent to the latter that its decisions were not appropriately amenable to its supervisory jurisdiction at all: 2011 SC 70, para 14. That extreme position is no longer contended for. The question is as to the scope or extent of the remedy. Third, the grounds of judicial control of administrative action in Scotland are based on legal principle. Judicial review by the Court of Session is not an exercise of judicial discretion, in contrast to what was said as to the position in English law in R (Sivasubramaniam) v Wandsworth County Council [2003] 1 WLR 475, para 47. Every person who complains that he has suffered a wrong because of an error or abuse of the power conferred on a decision maker is entitled to apply to the Court of Session for judicial review under Ch 58 of the Rules of the Court of Session 1994 as of right, in exactly the same way as he could have done by way of an ordinary action before the Rules of Court were amended to introduce the current procedure in 1985: West v Secretary of State for Scotland 1992 SC 385, 404. He does not have to apply for permission to do so and, although the Court has a discretion to refuse a remedy in judicial review on what may be described as equitable grounds, it has no discretion to refuse to entertain a competent application: Tehrani v Secretary of State for the Home Department 2007 SC (HL) 1, para 53. As the law currently stands, the hurdle that a petitioner must cross for a motion for a first order to be granted is a low one. In the Inner House the Lord President said that it seemed that this had been done only where the application was manifestly without substance: para 35. This approach was confirmed in Y v Secretary of State for the Home Department [2011] CSIH 3, 2011 SLT 508, where the Extra Division said that only in very exceptional circumstances should a refusal to grant first orders be made: para 16. Watt v Lord Advocate It is also common ground that the history and nature of the supervisory jurisdiction in Scotland shows that, contrary to what was said in Watt v Lord Advocate 1979 SC 120, the Court of Session has power to correct an error of law made by a statutory tribunal that acts within its statutory jurisdiction but has misunderstood the question that it has been given power to decide. In that case the pursuer sought and was granted reduction of a decision of a National Insurance Commissioner that he was not entitled to unemployment benefit. Lord President Emslie said that it was not necessary for him to express a concluded view on the point, as he had held that the Commissioner had exceeded his statutory powers and that his decision was ultra vires, but that he had the gravest doubt whether, if that had not been so the Court would have had power to review it. The Lord President went on to say this at p 131: it seems clear that, however much this is to be regretted, the Court Session has never had power to correct an intra vires error of law made by a statutory tribunal or authority exercising statutory jurisdiction. As Lord Justice Clerk Moncrieff said in Lord Advocate v Police Commissioners of Perth (1869) 8 M 244 at p 245 In the ordinary case it would now, I think, be held that where statutory powers are given, and a statutory jurisdiction is set up, all other jurisdictions are excluded There is no indication in any subsequent authority that this view has been doubted or even questioned and I entirely agree with the Lord Ordinary for the reasons which he gives that the fact that the Court of Session may have exercised a comprehensive corrective jurisdiction over determinations of parochial aid in the 18th and early 19th Centuries does not in any way support the existence of a jurisdiction in this court to correct errors by a statutory tribunal in the due performance of its statutory duties. As the Advocate General has pointed out, this approach suggests that the supervisory jurisdiction of the Court of Session is restricted to what is commonly referred to as pre Anisminic error. That is not the way that Lord Fraser of Tullybelton seems to have understood the position to be, as in Brown v Hamilton District Council 1983 SC (HL) 1, 42, he said: It is not necessary for me to consider the grounds on which judicial review may be open. The decisions in the English cases of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, so far as they relate to matters of substance and not of procedure, are accepted as being applicable in Scotland: see Watt v Lord Advocate 1979 SC 102. There is no difference in substance between the laws of the two countries on this matter. It does appear however that, in expressing the position as narrowly as he did in Watt, the Lord President failed to appreciate the significance of the decision in Anisminic, which abolished the distinction between errors of law that went to jurisdiction only in the strict sense and those that did not: Clyde and Edwards, Judicial Review, paras 22.21 22.24. quoted in Watt at p 130, Lord Reid said: In a passage from his speech in Anisminic at p 171 which the Lord President It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word jurisdiction has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. There then followed a list of examples which, as Lord Reid said was not intended to be exhaustive of errors that fell into that category, including where the tribunal has misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question that was not remitted to it, has refused to take into account something that it was required to take into account or has based its decision on some matter which it had no right to take into account. He ended this passage with these words, which indicate precisely where the boundary lies between what is open to review and what is not: But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. As the Lord President observed in the present case, Anisminic has come to be interpreted and applied in the English courts in a way that does not appear to sit easily with Lord President Emslies dictum: 2011 SC 70, para 43. The distinction between jurisdictional and other errors, which he was endorsing, has been abandoned. Furthermore, the way that his dictum has been applied in practice appears to have been somewhat patchy. It was applied in ONeill v Scottish Joint Negotiating Committee for Teaching Staff 1987 SC 90, by Lord Jauncey at p 94 and in Rae v Criminal Injuries Compensation Board 1997 SLT 291, by Lord Macfadyen at 295I J. More recently, since the decision in West v Secretary of State for Scotland 1992 SC 385 in which the court said at p 413 that there is no substantial difference between English and Scots law as to the grounds on which the process of decision making may be open to review, it has been ignored, as in Mooney v Secretary of State for Work and Pensions 2004 SLT 1141 and Donnelly v Secretary of State for Work and Pensions 2007 SCLR 746. In Diamond v PJW Enterprises 2004 SC 430, paras 37 38 the Lord Justice Clerk referred to the argument that Anisminic had made obsolete the traditional distinction that was recognised in Watt between an error of law as to jurisdiction and an error of law made intra vires but found it unnecessary to decide the issue. In Hyaltech Ltd, Petitioners 2009 SLT 92, para 53 too, as there had been no misapplication of the relevant law, the court found this not be necessary. But the dictum has never been expressly disapproved. In my opinion the time has come for it to be declared that Lord President Emslies dictum in Watt v Lord Advocate 1979 SC 102, 131 is incompatible with what was decided in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. In In re Racal Communications Ltd [1981] AC 374, 382 Lord Diplock said that the decision in Anisminic was a legal landmark which proceeded on the presumption that, where Parliament confers on an administrative tribunal or authority power to decide particular questions defined by the Act, it intends to confine that power to answering the question as it has been so defined and that, if there is any doubt what that question is, this is a matter that the court must resolve. I would hold that the dictum in Watt cannot be reconciled with that interpretation of the decision and that it should no longer be followed. Once again it must be stressed that there is, in principle, no difference between the law of England and Scots law as to the substantive grounds on which a decision by a tribunal which acts within its jurisdiction may be open to review: Brown v Hamilton District Council 1983 SC (HL) 1, 42 per Lord Fraser; West v Secretary of State for Scotland 1992 SC 385, 402 and 413. The extent of the remedy in English law The choices in relation to unappealable decisions of the Upper Tribunal in England and Wales were examined in the judgment that the Court has given today in Cart and MR (Pakistan): [2011] UKSC 28. As Lady Hale explained in para 37, three points had become clear in the course of oral argument. First, there is nothing in the 2007 Act which purports to exclude judicial review of unappealable decisions of the Upper Tribunal. Second, it would be inconsistent with the new structure introduced by the 2007 Act to distinguish between the scope of judicial review in the various jurisdictions which it has gathered together in that new structure. I note in passing that the Advocate General submitted in Ms Ebas case that its scope should be the same across all the chambers of the Upper Tribunal, that there was no submission from anyone else to the contrary and that the Inner House agreed that there should be no distinction between any of them: 2011 SC 70, para 61. Third, as the object of judicial review is to ensure that decisions are taken in accordance with the law and not otherwise, the question is what machinery is necessary to ensure that mistakes as to what the law requires are kept to a minimum. Should there be any jurisdiction in which mistakes of law are immune from scrutiny in the higher courts? There were, then, three possible approaches which the Court could have taken. First, it could have endorsed the decision of the Court of Appeal in Cart and held that the scope of judicial review should be restricted to an excess of jurisdiction in the pre Anisminic sense or where there had been a procedural irregularity such that the applicant had been denied a fair hearing. Second, it could have held that nothing had changed and that judicial review of the kind that had always been available before the 2007 Act should be retained. Third, a course between these two options could be adopted in which judicial review would be limited to the grounds on which permission might be granted for a second tier appeal to the Court of Appeal. The first option was rejected. The approach of the Court of Appeal in Cart was too narrow, as it left the possibility that serious errors of law affecting large numbers of people would go uncorrected: para 44. The second option, too, was rejected. Although the courts have adopted principles of judicial restraint when considering the decisions of expert tribunals, it had found more favour in some contexts than others. A principled but proportionate approach was now required: paras 49 50. Unrestricted judicial review was not necessary for the maintenance of the rule of law and was not proportionate: Lord Dyson, para 128. This left the adoption of the second tier appeals criteria, which would be a rational and proportionate restriction upon the availability of judicial review. It would recognise that the new tribunal structure deserves a more restrained approach to judicial review than had previously been the case: para 57. But, as Lord Phillips said in his judgment at para 92, some overall judicial supervision was needed in order to guard against the risk that errors of law of real significance may slip through the system. So it was the third approach which was adopted. Should the same approach be followed in Scotland? For the Advocate General, Mr Johnston QC submitted that the conclusion that was reached as to the extent of the remedy for England and Wales should be applied to Scotland too. He expressed concern about the extent of the burden that applications for judicial review would impose if the decision of the Inner House were to be supported, especially in immigration and asylum cases. The Scottish Court Service had drawn attention to this problem in the consultation on immigration appeals in 2008, pointing out that many of these applications took in excess of one judge day to consider and that they accounted for approximately the equivalent of the time of one full time judge for which no additional resource had been provided. While the number of these applications might seem to be small in comparison to the position in England and Wales, it was nevertheless a significant burden on the Scottish Courts. There was no current mechanism for sifting out unmeritorious applications, apart from that indicated by Y v Secretary of State for the Home Department [2011] SLT 508, para 16. The fact that petitions for judicial review occupied a disproportionate amount of sitting days had been noted by Lord Gill in his Report of the Scottish Civil Courts Review (September 2009), chapter 12, para 50. The recommendation in para 51 of that chapter that a requirement to obtain leave should be introduced had not yet been implemented. It was open to the court to set the parameters. This was not just a matter for Parliament. The Inner House had been wrong to decline this opportunity: 2011 SC 70, para 60. He drew attention to the fact that the scope of the remedy can be tailored by the court to the needs of the particular body. A good example of this was the ecclesiastical case of McDonald v Burns 1940 SC 376, in which Lord Justice Clerk Aitchison at p 383 had addressed the question as to the circumstances in which the Courts would entertain actions arising out of the judgments of ecclesiastical bodies. As the Lord Ordinary had pointed out, there were many fields in which the courts in Scotland had tailored their approach to the nature of the tribunal, the subject matter of the dispute and the perceived parliamentary intention behind any relevant legislation: 2010 SLT 547, para 89. The Inner House had simply been wrong to rely on the mere fact that a petitioner was entitled to bring the case into court: 2011 SC 70, para 60. Tehrani did not support this approach to the grounds on which the remedy might be exercised. Also the 2007 Act is an enactment of the Parliament of the United Kingdom. It should not be applied in a way that would encourage forum shopping. Intervening on behalf of the Lord Advocate, Mr Mure QC submitted that there was no pressing need to control the exercise of the supervisory jurisdiction in Scotland in respect of the 2007 Act tribunals by restricting the grounds of review. He accepted that this case provided the court with an opportunity to mould its approach, but he maintained the post Anisminic grounds of review should remain. It should be left to the Court of Session to adapt the intensity of the review to the needs of each case. Resources were an issue, but this was a matter for the Scottish Government to address. The 2007 Act was a United Kingdom statute, but it had been careful to make separate provision for Scotland. This allowed for a different approach to be taken to the way the supervisory jurisdiction should be exercised in Scotland from that which might be adopted in England. For Ms Eba, Mr Mitchell stressed that the Scottish approach to the supervisory jurisdiction was that described in West v Secretary of State for Scotland. She had a right to have her complaint dealt with by the court. The Inner House had been right to observe that in Scotland, in contrast to what had happened in England and Wales, the right of the citizen to invoke the jurisdiction of the Court of Session to control the actings of statutory bodies had never been circumscribed on discretionary or similar grounds: 2011 SC 70, para 60. It had always been accepted in Scotland that it would require clear, unambiguous and express words to oust that jurisdiction: e.g. Dunbar v Scottish County Investments 1920 SC 201, 217; Hume v Nursing and Midwifery Council 2007 SC 644, para 17; Clyde and Edwards, Judicial Review, para 11.04. Mr Mitchell accepted that the grounds for review could vary according to the nature of the bodies themselves. But he submitted that it would not be right to restrict the intensity of review by analogy with the test that the 2007 Act had laid down for second appeals. The Act had not effected a complete re ordering of administrative justice in Scotland, as there was not and could not be a unified system for the whole range of Scots tribunals. There was no reason why the approach that was taken to a decision made by a sheriff under the Mental Health (Scotland) Act 1984 in R v Secretary of State for Scotland 1999 SC (HL) 17 should not be applied generally. It was wrong to see the 2007 Act as having created something that was fundamentally different from what was there before. It had long been established in the social security context that unappealable refusals of leave to appeal were amenable to judicial review on ordinary grounds, with due recognition and respect for specialist expertise. Such statistics as were available suggested that the increase in the number of applications in immigration and asylum cases was not a pressing issue that was incapable of being dealt with by case management. The court should not pre empt what might come from the reforms indicated by the Civil Courts Review. The submissions which I have set out in this brief summary were, of course, presented on the assumption that one of the choices with which the court was presented was to endorse the approach of the Court of Appeal in Cart. There is no doubt that a decision by this Court to endorse that approach with regard to unappealable decisions of the Upper Tribunal in England and Wales would have presented a very real problem in Scotland. To extend it to Scotland would have created a rift between the broad and flexible approach that is taken to the supervisory jurisdiction in Scotland generally, which is available as of right to everyone, and the very limited opportunity for review which it would have provided in the case only of that class of unappealable decisions. It would also lead us back, in their case only, to the distinction between jurisdictional and other errors to which Lord President Emslie referred in Watt v Lord Advocate 1979 SC 102, 131 but was effectively abandoned after Anisminic, as Lady Hale said in Cart and MR, para 39. This would indeed have destroyed the consistency of the approach to the supervisory jurisdiction in Scots law, as was submitted for Ms Eba. It would have been hard to justify. As it is, the decision of this court in Cart and MR not to endorse that approach has removed that objection. It has made it much easier for the Scots approach to the supervisory jurisdiction in relation to unappealable decisions of the Upper Tribunal in Scotland to find common ground with that which must now be taken in England and Wales. The key to our doing so lies in a recognition that the issue is not one about access to the remedy, which will remain available to the citizen as of right, or the purpose for which the supervisory jurisdiction may be exercised. It is an issue about how best to tailor the scope of the remedy according to the nature and the expertise of the Upper Tribunal and the subject matter of the decisions that have been entrusted to it by Parliament. There is no doubt that the supervisory jurisdiction is capable of being moulded in this way. As was pointed out in West v Secretary of State for Scotland 1992 SC 385, 397, a distinction must be made between the question of competency as to whether a decision is open to review by the Court of Session in the exercise of its supervisory jurisdiction, and the substantive grounds on which it may do so: The extent of the supervisory jurisdiction is capable of a relatively precise definition, in which the essential principles can be expressed. But the substantive grounds on which that jurisdiction may be exercised will of course vary from case to case. And they may be adapted to conform to the standards of decision taking as they are evolved from time to time by the common law. There is an element of flexibility within this system that has enabled the grounds of judicial review to be adapted to a diverse range of decision making bodies. As the Lord Ordinary observed, the Court of Session has been slow to interfere with decisions of specialist tribunals, and it has been restrained in its approach in reviewing decisions of arbitrators and decisions of adjudicators under the Housing Grants, Construction and Regeneration Act 1996: 2010 SLT 547, para 89. This can be compared with the cautious approach to giving permission to appeal from decisions of the Social Security Commissioners in England and Wales because of their particular expertise in a highly specialised area of the law that was indicated by Hale LJ in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 278, paras 15 17. The fact that, as was stressed repeatedly in West v Secretary of State for Scotland (see pp 403, 405 and 413), there is no substantial difference between English and Scots law as to the grounds on which the process of decision making may be open to review provides further support for the argument that there should be no difference between them as to the scope for the judicial review of unappealable decisions of the Upper Tribunal on either side of the Border. This is why Scots law has been able to follow the developments in the English approach to judicial review since Anisminic in preference to the approach indicated in Watt v Lord Advocate 1979 SC 102, 131. Lord Frasers observations in Brown v Hamilton District Council 1983 SC (HL) 1, 42 show that there is no obstacle to its doing this. It would not, therefore, be a very large step for the Scots approach to unappealable decisions of the Upper Tribunal to align itself with that which has now been decided should be taken in England and Wales. As to whether it should now do so, I would unhesitatingly answer that question in the affirmative. I would do so for reasons that have at least as much to do with the restraint that the Court of Session has already recognised it should take to decisions of that kind as with the need for it to find common ground with the position in English law. Two factors seem to me to carry particular weight. One is the familiar point that the court should be slow to interfere with decisions that lie within the expertise of specialist tribunals. As Dyson LJ said in R (Wiles) v Social Security Commissioner [2010] EWCA Civ 258, para 54, the reviewing court should not be astute to detect some error in their decision to refuse leave to appeal. That is already well established, as a matter of practice, in Scots law. The other is the fact that the limitation on the scope for second appeals in section 13(6) of the 2007 Act has been reproduced in rule 41.59 of the Rules of the Court of Session: see paras 22 and 23, above. That rule gives effect to a particular intention about when questions of law should be subject to further scrutiny by a higher court. It would not be consistent with that intention, to which the amendment to the Rules has given effect, for the court to provide a wider opportunity for the decisions of the Upper Tribunal to refuse permission to appeal to itself to be reconsidered by way of judicial review. So I would hold that the phrases some important point of principle or practice and some other compelling reason, which restrict the scope for a second appeal, provide a benchmark for the court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable that is in harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, paras 17 and 24 per Dyson LJ and Cramp v Hastings Borough Council [2005] EWCA Civ 1005 para 68 per Brooke LJ. Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioners own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all. I would leave it to the Court of Session to give such further guidance as may be needed as to how this analogy with the second appeals criterion should be applied in practice. But it may be helpful if I were to mention these points: (a) Lord Reids observation in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 that if a statutory tribunal decides a question remitted to it for decision without committing an error of law as to what that question is, it is as much entitled to decide that question wrongly as it is to decide it rightly remains the basic yardstick: see also West v Secretary of State for Scotland 1992 SC 385, p 413, para 2. (b) The court must then distinguish between errors of law that raise an important issue of principle or practice, or reasons that are compelling, and those that do not answer to this description. The question whether the application meets this test must depend on the facts of each case. It ought to be capable of being applied at the earliest possible stage, and certainly at the stage of the first hearing, as a matter of relevancy. (c) Under the current rules a person who invokes the supervisory jurisdiction does not require permission to do so. But a petition for judicial review can be dismissed at the stage of a motion for a first order: Sokha v Secretary of State for the Home Department 1992 SLT 1049; Butt v Secretary of State for the Home Department, 15 March 1995, unreported (1995) GWD 16 905. As the law currently stands, the hurdle that a petitioner must cross for a motion for a first order to be granted is a low one: Y v Secretary of State for the Home Department 2011 SLT 508; see para 28, above. I think that this is perfectly acceptable as the test for use in relation to applications to the supervisory jurisdiction of the Court of Session generally. But its application to that special category of cases where a petitioner seeks to bring unappealable decisions of the Upper Tribunal under review needs now to be reconsidered. (d) The ever increasing pressure on the courts business by applications for judicial review to which our attention has been drawn, together with the fact that the new tribunal structure requires that a more restrained approach be taken to judicial review of decisions of this kind, suggests that the Lord Ordinary to whom a petition is presented under rule 58.7 for a first order for the review of an unappealable decision of the Upper Tribunal should be encouraged to consider the question whether there is an arguable case that the criterion referred to in para (b) is satisfied before he or she decides whether or not a first order should be granted. It seems to me, with respect, that the approach which Lady Smith took to this issue in the Outer House when she declined to grant the petitioners motion for first orders because she was not satisfied that an arguable case had been made out in Y v Secretary of State for the Home Department 2010 SLT 170, paras 12 14, has much to commend it, and that it would be appropriate for use in relation to cases falling within this special category. Other Scottish Tribunals For the Advocate General Mr Johnston said that there were good grounds for distinguishing between those tribunals that are within the system of the 2007 Act and those that are not. Tribunals of the latter kind should be left to another day. For the Lord Advocate Mr Mure said the position is still in flux and that this court should be wary of telling the Court of Session how to deal with them. A number of tools are available and it should be left to the Court of Session to choose between them. For Ms Eba Mr Mitchell expressed concern about what he referred to as seepage into decisions of the other tribunals if the approach of the Court of Appeal in Cart were to be applied to unappealable decisions of the Upper Tribunal in Scotland. That problem, however, does not now arise. As noted above, it is already well established in Scots law as a matter of common law that restraint should be exercised in the opening up of decisions of specialist tribunals to judicial review. What is lacking in the case of these other tribunals is the intention of Parliament which is indicated by the statutory restriction on the availability of second appeals. Rule 41.59 does not apply to them. But the harmony between the statutory restriction and the common law principle of restraint suggests that the absence of that additional element is unlikely to make any substantial difference in practice. It is not necessary for us to reach any decision on the point, as a case that has been the subject of decision by a tribunal within this group is not before us. But I do not see any good reason why a different approach should be taken to the application of the common law principle of restraint to unappealable decisions of those tribunals from that which must now be taken to those of the Upper Tribunal that are unappealable. Conclusion Ms Eba accepted before the Lord Ordinary that she had not pled herself within the exceptional circumstances test that was used as a shorthand for an excess of jurisdiction in the pre Anisminic sense: 2010 SLT 547, para 4. But it was also accepted that, if the Advocate Generals argument were to fail, there would require to be further procedure to determine the merits of Ms Ebas case. Scrutiny of the merits of her case was taken no further in the Inner House in view of its decision that the scope of the supervisory jurisdiction of the Court of Session to judicially review unappealable decisions of the Upper Tribunal was unrestricted. I would therefore dismiss the appeal by the Advocate General and, although for different reasons, affirm the interlocutor of the Inner House of the Court of Session. The case should be remitted by the Inner House to the Lord Ordinary to examine the question whether Ms Eba has sufficient grounds for judicial review of Judge Mays decision, which was to refuse her application for permission to appeal to the Upper Tribunal against the refusal of her claim to disability living allowance. I would direct him, when he does so, to apply the approach to the scope for review that has been described in the judgment of this Court. |
The respondent (VWFS) is a member of the Volkswagen Group, and is used (through its retail sector) to provide hire purchase (HP) finance for the sale of vehicles manufactured by the group. When a customer of a VW dealership wishes to purchase a vehicle using finance from VWFS, the vehicle is acquired by VWFS as part of the finance arrangements from the dealer and then supplied by it to the customer on deferred payment terms under an HP contract. The vehicles are sold on to the customer at the same price as they are purchased from the dealer. This appeal is concerned with the treatment of general business overheads, not directly attributable to particular supplies. The legal and factual background is set out in detail in the judgment of Patten LJ and need not be repeated. As he explained the issue arises in the context of a so called partial exemption special method (PESM) agreed with HMRC for the valuation of the proportion of residual input tax attributable to HP transactions. The issue is whether any of the residual input tax paid by VWFS in respect of such general overheads (so far as apportioned to the retail sector) is deductible against the output tax paid on the taxable supply of vehicles to customers. HMRCs primary contention is that the overheads are all attributable to the exempt supplies of finance and the input tax is therefore irrecoverable. VWFS contends that the residual input tax should be split in proportion to the ratio of taxable transactions to the whole, which has the effect of splitting the residual input tax 50/50 for HP transactions. That issue was decided in favour of VWFS by the First tier Tribunal (FTT), and by the Court of Appeal, although the Upper Tribunal had supported HMRCs approach. That remains the main issue in the appeal, but is one on which the court has decided that a reference to the CJEU is necessary to reach a conclusion. The present judgment is concerned with a secondary issue. Mr Thomas argues that HMRC had a fall back position on the amount of the apportionment, which the FTT had failed to consider. As Patten LJ explained: The First tier Tribunal proceeded on the basis that the only dispute about methodology was whether any part of the residual input tax was attributable to and could be set off against the taxable supplies of vehicles made in the retail sector of VWFSs business. But HMRC contend that they did challenge the apportionment formula contained in the proposed PESM on wider grounds and that a lower figure than 50% should be attributed to the taxable supplies of vehicles as part of the hire purchase contracts in terms of the use made of the allocated inputs. (para 13) Patten LJ expressed some surprise (which I share) that, in an appeal where both sides were represented by experienced counsel, such an issue had not been capable of resolution by agreement between them, or by reference to their written submissions or notes of the hearing. However, the court had been asked to resolve the issue on the available material. That included: i) HMRCs skeleton argument before the tribunal which had described the issue as being whether VWFS method produces a fair and reasonable attribution of residual input tax in the retail sector, but without putting forward a positive alternative to HMRCs preferred methodology, or suggesting a different apportionment. ii) HMRC had relied upon two witness statements made by Mr Jonathan Cannon, the second of which commented on the differences between the two approaches. He observed that VWFSs approach was realistic, perhaps more so than the HMRCs approach, but was open to two particular concerns, which he identified. Again he did not put forward an alternative apportionment. iii) made by Mr Thomas: Judge Berners notes of the hearing recorded the following submission [The] value of the car does not bear on the use of overheads. What [VWFS] says is [that] if [that is done] it would be 80%, but 50% is fair. But why? The appellant does not say. 50% is an arbitrary selection of a figure. No analysis has been put forward. [This] comes from the weighting exercise. HP contracts [are] treated as two transactions. [It is] wholly unexplained as [to] why it is fair to treat HP [transactions] 1:1. Why not another fraction? The Upper Tribunal (para 103) saw this extract as supporting Mr Thomass submission that he had asked the FTT to consider in the alternative whether a lesser figure than 50% should have been attributed to the taxable supplies. Patten LJ thought otherwise: But my own reading of the judges notes on these issues is that Mr Thomas was challenging the basis of the 50% attribution as arbitrary in the context, as Ms Shaw has submitted, of an argument that any attribution was impermissible. HMRC did not rely upon some alternative methodology which attributed to the use of the residual inputs by the taxable supply of vehicles a figure somewhere between 1% and 50%. I do not see how this court is in the position to gainsay Judge Berners understanding of the parties position on the appeals which the FTT heard and none of the materials we have been asked to look at demonstrate that the FTT misunderstood HMRCs case. (para 71) In this court Mr Thomas submits that the Court of Appeal failed to take account of the nature of the appeal to the tribunal, which allows the FTT to consider both issues of principle and the amount of the assessment. He relies on words of mine in Pegasus Birds Ltd v Revenue and Customs and Excise Comrs [2004] EWCA Civ 1015; [2004] STC 1509: The Tribunal should remember that its primary task is to find the correct amount of tax, so far as possible on the material properly available to it, the burden resting on the taxpayer. In all but very exceptional cases, that should be the focus of the hearing (para 38(i)) He relies also on Banbury Visionplus Ltd v Her Majestys Revenue and Customs [2006] EWHC 1024; [2006] STC 1568 para 48, where in a similar context to the present Etherton J held that there was nothing to exclude the jurisdiction of the tribunal to decide whether a particular method would achieve the statutory objective. Miss Shaw submits that those cases do not detract from the general principle that proceedings before the tribunal are not inquisitorial in nature; it is no part of the tribunals role to undertake a roving review of the dispute of its own motion. She relies on comments of Forbes J as to the adversarial nature of proceedings before the former VAT Tribunal (Tynewydd Labour Working Mens Club and Institute Ltd v Customs and Excise Comrs [1979] STC 570, 580). In my view, this issue does not require examination of general questions about the tribunals role. One of the strengths of the new tribunal system is the flexibility of its procedures, which need to be and can be adapted to a wide range of types of case and of litigant. In some areas, particularly those involving litigants in person, a more inquisitorial role may be appropriate. However, when the tribunal as here is dealing with substantial litigants, represented by experienced counsel, it is entitled to assume that the parties will have identified with some care what they regard as relevant issues for decision. My comments in Pegasus Birds should not be taken as indicating anything different. They were not of general application, but intended (as the following words made clear) to discourage undue attention to the Commissioners original exercise of best judgment, as opposed to the correctness of the result. Like Patten LJ, I would attach particular importance to the tribunals understanding of the issue before it. This is apparent from the tribunals own introduction to the detailed discussion. Having described the main issue, the tribunal continued: That is the full extent of the dispute. Other aspects of what amounts to a fair and reasonable attribution, such as ease of audit and operation, are not at issue. Nor, although the Tribunal itself asked for clarification, is the 50/50 weighting that VWFS proposes as between the taxable supplies of the vehicle and the exempt supplies of finance under the HP agreements. The evidence of Mr Cannan for HMRC shows that the weighting is accepted as realistic; indeed he concedes that it may be more realistic than that adopted by HMRCs method. The dispute is not on the weighting, but on whether any part of the residual input tax should be attributed at all to the taxable supply of the vehicle. (para 41, emphasis added) I agree with Patten LJ that we have no material which could justify going behind that clear statement of the position as the tribunal understood it, having itself apparently sought clarification. Mr Thomas says that he has no recollection of such a request. However, if there was any doubt about that, the time to have dealt with it was when the decision was received. If the tribunal was thought to have misunderstood HMRCs position, and failed to deal with a significant issue, the matter could have been raised with them and sorted out then and there, at a time when it was fresh in the minds of all involved. As it is the tribunals understanding seems to me entirely consistent with the lack of any specific reference to this issue in their written submissions or the evidence of their witness. I agree with Patten LJ that the passing reference in the note of cross examination adds nothing. For these reasons, in agreement with the Court of Appeal, I would dismiss this ground of appeal. |
The issue on this appeal is whether claims against Morgan Advanced Materials plc (formerly Morgan Crucible Co plc) (the appellant) for loss allegedly suffered by reason of a cartel infringing article 81(1) TEC (now article 101 TFEU) are time barred. The issue links with important substantive questions about the nature of the decisions of the European Commission (or European Court of Justice) which bind domestic courts as to the existence of such a cartel. It has been very well argued by counsel on both sides. Article 81(1) prohibited all agreements between undertakings . and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. The appellant and others operated an illegal cartel in the sector of electrical and mechanical carbon and graphite products. The appellant as whistle blower disclosed the existence of the cartel to the Commission and a Commission Decision finding that article 81(1) had been infringed by the members of the cartel was issued on 3 December 2003. The appellant escaped any fine. The other cartel members received heavy fines. Most of the cartel members appealed to the General Court, contending that it should annul the Decision or substantially reduce the fines. The General Court dismissed their appeals on 8 October 2008, and the time for any further appeal to the Court of Justice against the finding of infringement expired on 18 December 2008. Two of the companies lodged further appeals against their fines, but their appeals were dismissed by the Court of Justice on 12 November 2009, and are of no materiality to this appeal: BCL Old Co Ltd v BASF plc [2012] UKSC 45; [2012] 1 WLR 2922. On 15 December 2010, Deutsche Bahn AG and others (the respondents) filed with the Competition Appeal Tribunal claims for damages for loss alleged to have resulted from the cartel. The claims were follow on claims, that is claims made under section 47A of the Competition Act 1998 in reliance upon the European Commissions finding (upheld in fact in all respects on the various appeals) that article 81(1) TEC had been infringed. Section 47A(4) assigns such claims to the Competition Appeal Tribunal, while section 47A(5) provides that . no claim may be made in such proceedings i) until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and ii) otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision. Section 47A(6) states that The decisions which may be relied on for the purposes of proceedings under this section are . (d) a decision of the European Commission that the prohibition in article 81(1) or article 82 of the Treaty has been infringed; . Section 47A(8) provides that The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are i) the period during which proceedings against the decision or finding may be instituted in the European Court; and ii) if any such proceedings are instituted, the period before those proceedings are determined. The inference from section 47A(8) is that, if and to the extent that a Commission decision upon which reliance could otherwise be placed under section 47A(6)(d) is set aside on appeal, there ceases to be any such decision for that purpose. The advantage of follow on proceedings (as opposed to independent High Court proceedings for infringement of article 81(1), or now article 101) is that, by section 47A(9) of the 1998 Act: In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed. A potential disadvantage is that rule 31 of the Competition Appeal Tribunal Rules 2003 (SI 2003/1372) introduces a two year period for the bringing of any follow on claim. Rule 31 defines that period as beginning on the later of two dates, being the end of the period defined by section 47A(8) of the 1998 Act or the date on which the cause of action accrued. The issue thus arises whether the decision to which the above provisions refer is the Commission Decision viewed as a decision made against and not appealed by the appellant, or the Commission Decision viewed as a decision made against all the cartel members, appealed by most of them and finally upheld as to liability by the General Court. On the former approach the two year limitation period began on 13 February 2004 when time expired for an appeal by the appellant to the General Court, and the present follow on claims issued on 15 December 2010 were brought too late. On the latter approach it began only on 18 December 2008 when time expired for an appeal to the Court of Justice by those who had appealed to the General Court, and the follow on claims were in time. The appellant therefore argue for the former approach, the respondents for the latter. The Tribunal (Marcus Smith QC, Mrs Margot Daly and Mr Dermot Glynn) by judgment of 25 May 2011 accepted the appellants case, and so struck out the respondents claims. The Court of Appeal (Mummery, Etherton and Sullivan LJJ) by a judgment dated 31 July 2012 ([2012] EWCA Civ 1055; [2013] Bus LR 125) accepted the respondents case and so restored their claims. The appeal comes to the Supreme Court with its permission. Section 47A(9) of the 1998 Act reflects a general principle of European law, that domestic courts cannot take decisions running counter to a Commission decision finding an infringement of article 81 TEC or now article 101 TFEU. Domestic courts must therefore accept a Commission decision that a prohibited agreement or practice exists: Case C 344/98 Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I 11369; Case C 199/11 Europese Gemeenschap v Otis NV [2013] 4 CMLR 141, para 65. In contrast, the existence of any loss and of a direct causal link between any loss and the agreement or practice in question are matters for the national court: Otis, para 65. So too are the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness): Joined Cases C 295/04 to C 298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I 6619, para 62. Likewise, it is for the domestic legal system of each member state to prescribe the limitation period for seeking compensation for harm caused by an agreement or practice prohibited under article 81 EC, provided that the principles of equivalence and effectiveness are observed: Manfredi, para 81. In the present case, after reasons extending over 364 paras, the Commission Decision concluded by an operative part adopting a Decision consisting of four simple articles. The first declared that six named undertakings including the appellant have infringed article 81(1) . by participating, for periods separately stated in the case of each, in a complex of agreements and concerted practices in the sector of electrical and mechanical carbon and graphite products. The second imposed separately specified fines (or in the appellants case no fine) for the infringements referred to in article 1, to be paid within three months to a specified bank account. The third required the immediate termination of the infringements and prohibited their repetition, and the fourth recited that the Decision was addressed to each of the members of the cartel, giving names and addresses, including the appellants. The operative part ended with a statement that the Decision was enforceable under article 256 TEC. In accepting the respondents case, the Court of Appeal (in a judgment given by Mummery LJ with which his colleagues agreed) was influenced by considerations falling under three main heads. First, the issue was essentially one of domestic law: the claim was for private law damages, unrelated to the penalties or fines which sanction breaches of European law; section 47A was a domestic provision regulating (amongst other matters) limitation, a matter left to domestic law (paras 100 103), although section 47A was not in this respect to be compared with ordinary domestic limitation periods (paras 104 106). The objectives and scheme of section 47A were different, because, inter alia, the period it prescribes only impacts on certain aspects of the claims. Liability for infringement has already been established in the Commission Decision and is binding on the parties and the Tribunal. Only issues of causation and quantum are left to be determined by the Tribunal (para 105). Section 47A was therefore more about the allocation and distribution of judicial business within the system of domestic courts and specialist tribunals than concerned with the normal limitation policy of barring stale claims (para 106). However, it had also to provide for the possibility that the Commission Decision might not actually be final or binding as regards civil claims, because it might be partially or completely set aside on appeal to the European Court of Justice (para 107). Second, the Court of Appeal saw the statutory references to a decision establishing that the prohibition has been infringed as quite general in their natural and ordinary meaning, and as not referring to a decision against, or as regards, a particular party or particular addressee of the Commission Decision (para 110). It saw a decision that a cartel exists as a decision relating to a single and continuous infringement based on common evidence and interdependent facts (para 116). It saw the appellate process before the European Court of Justice as directed to the same base decision that there had been infringement, rather than to any decision against any particular party or addressee (para 112). Once infringement was found, it was true that the Commission had necessarily to levy individual fines on individual addressees, but appeals against fines were irrelevant to civil proceedings for damages (paras 114 115 see also para 3 above). Thirdly, the Court of Appeal regarded practical considerations as militating in favour of its interpretation (paras 118 119). It thought it more sensible that any follow on claim should be postponed until the final decision on infringement was known, so that all questions of causation, quantum and contribution could be resolved at the same time (para 119). It noted that, on the appellants case, the appellant would itself have had no defence to liability for a single and continuous infringement by all the undertakings to which the Commission Decision had been addressed, even if all their alleged fellow cartel members had successfully appealed to the European Court of Justice and had the finding of infringement set aside (para 18). The Court of Appeal saw that as a consequence against which the appellant, in other contexts, would have been likely to dispute (para 17). As to the Court of Appeals first head, section 47A is a provision of domestic law, and the procedures and limitation period governing civil claims for breach of article 81 (or now article 101) are matters assigned by European law to domestic law. But section 47A contains critical cross references to a matter determined by European law. The decision establishing that article 81(1) has been infringed, to which section 47A(5) and (9) refer, is taken under European law by the Commission (subject to any appeal to the European Court of Justice). Further, it is a decision which is, under European law and not merely under section 47A(9), binding on domestic courts and tribunals. Under European law, it only leads to fines and an order to terminate the infringement. These are matters outside the scope of domestic Tribunal proceedings, just as an award of civil compensation is a matter for the Tribunal or High Court, outside the jurisdiction of the European Court of Justice. The Court of Appeal deduced from this distinction that European law is irrelevant to the nature of the decision to which section 47A refers. That was in my opinion an error. The decision to which section 47A refers is the decision taken by the Commission under European law (here upheld by the European Court). The fact that it gives rise at the European level to fines and injunctive relief, and not to civil remedies, is beside the point. It is the only decision which there is. To understand its nature, regard must necessarily be had to European law. Article 249 TEC provides A decision shall be binding in its entirety upon those to whom it is addressed, and article 288 TFEU is in very similar terms. But such terms leave open whether a decision operates on a unitary basis against all addressees, or as against each addressee separately. The nature of a decision under article 81(1) (now article 101(1)) has in this respect been explained by the European Court of Justice in Case C 310/97 P AssiDomn Kraft Products AB v Commission of the European Communities [1999] ECR I 5363. There, the Commission had by Decision dated 19 December 1984 found forty wood pulp producers to have been party to a cartel. Article 1(1) of the operative part of the Decision found concertation in the prices for wood pulp deliveries to the European Economic Community in 1975 to 1981, article 1(2) found concertation on actual transaction prices charged in certain Community countries, while article 1(5) found a practice of including in contracts for wood pulp sales clauses prohibiting the export or resale of the wood pulp purchased by customers. The Commission fined thirty six of the forty producers, including nine established in Sweden, substantial sums. Twenty eight of the addressees of the Decision (none of them Swedish) filed appeals seeking annulment of the Decision and of the consequent fines. The European Court of Justice by judgment of 31 March 1993 (Joined Cases C 89/85 and others, Ahlstrm (A) Osakeyhti v Commission of the European Communities [1993] ECR I 1307) annulled both article 1(1) of the operative part of the Commission Decision, holding that the conduct relied upon by the Commission does not evidence concertation (para 126) and article 1(2), holding that the addressees had not had an opportunity effectively to defend themselves in the administrative procedure against the allegation. It upheld the finding of practice made in article 1(5). Having annulled the finding of certain of the infringements, the Court then annulled or reduced the fines imposed by the Commission, and further annulled the undertakings imposed in consequence of the Commissions findings of infringements which had now been annulled. After delivery of the Courts judgment, the Swedish addressees of the Commission Decision asked the Commission to re examine their legal situation and to refund them the fines they had paid, to the extent to which they had been imposed for infringements founds in articles 1(1) and 1(2) of the Decision which had been annulled by the Court. The Commission having declined to do this on 4 October 1995, the Swedish addressees brought proceedings on 15 December 1995, claiming that the Court should annul the Commissions Decision of 4 October 1995 and order repayment of such fines. The Court of First Instance (now the General Court) on 10 July 1997 concluded that, although the Commission Decision must be treated as a bundle of individual decisions, it would be contrary to the principle of legality for the Commission not to have to review its initial decision, and that the fines should be repaid. On further appeal, the Court of Justice set aside the Court of First Instances decision. The Court of Justice identified the issue as follows: 49 Essentially, the appeal raises the question whether, where several similar individual decisions imposing fines have been adopted pursuant to a common procedure and only some addressees have taken legal action and obtained annulment, the institution which adopted them must, at the request of other addressees, re examine the legality of the unchallenged decisions in the light of the grounds of the annulling judgment and determine whether, following such a re examination, the fines paid must be refunded. The Courts answer included the following instructive passages: 52 First, since it would be ultra vires for the Community judicature to rule ultra petita . the scope of the annulment which it pronounces may not go further than that sought by the applicant. 53 Consequently, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the Community judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the Community judicature. 54 Furthermore, although the authority erga omnes exerted by an annulling judgment of a court of the Community judicature . attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the Community judicature but alleged to be vitiated by the same illegality. 55 The only purpose of considering the grounds of the judgment which set out the precise reasons for the illegality found by the Community Court . is to determine the exact meaning of the ruling made in the operative part of the judgment. The authority of a ground of a judgment annulling a measure cannot apply to the situation of persons who were not parties to the proceedings and with regard to whom the judgment cannot therefore have decided anything whatever. 57 It is settled case law that a decision which has not been challenged by the addressee within the time limit laid down by article 173 of the Treaty becomes definitive as against him . 63 Where a number of similar individual decisions imposing fines have been adopted pursuant to a common procedure and only some addressees have taken legal action against the decisions concerning them and obtained their annulment, the principle of legal certainty underlying the explanations set forth in paras 57 to 62 above therefore precludes any necessity for the institution which adopted the decisions to re examine, at the request of other addressees, in the light of the grounds of the annulling judgment, the legality of the unchallenged decisions to determine, on the basis of that examination, whether the fines paid must be refunded. The essential principle derived from these statements was recently repeated in Case T 462/07 Galp Energa Espaa SA v European Commission (unreported) 16 September 2013. Again, only some of the addressees of a Commission Decision had appealed, but they sought annulment of the Decision as against all its addressees. The General Court said: 89 Principally, the applicants submit claims seeking annulment of the contested decision in its entirety and not in so far as it concerns them. 90 However, a decision adopted in a competition matter with respect to several undertakings, although drafted and published in the form of a single decision, must be seen as a set of individual decisions finding that each of the addressees is guilty of the infringement or infringements of which they are accused and imposing on them, where appropriate, a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the European Union judicature, and remains binding on those addressees which have not applied for its annulment (Joined Cases C 238/99 P, C 244/99 P, C 245/99 P, C 247/99 P, C 250/99 P to C 252/99 P and C 254/99 P Limburgse Vinyl Maatschappij v Commission [2002] ECR I 8375, paras 99 and 100). 91 Accordingly, the applicants are not entitled to seek the annulment of the contested decision in so far as it concerns other addressees. The judgments in AssiDomn and Galp Energa establish that a Commission Decision regarding the existence of a cartel constitutes a series of decisions addressed to its individual addressees, which remain binding or not according to the lodging and outcome of any individual appeals. A successful appeal by one addressee, establishing that there was no cartel, has no effect on the validity and effects of the Decision determining that there was such a cartel and levying a fine as against another addressee who has not appealed. This is so although article 81(1) (and now article 101(1)) applies to agreements and concerted practices (concepts which postulate the involvement of more than one party), and although a Commission Decision, such as that in question on this appeal, addresses in a single document all addressees by reference to one or more particular agreements or practices found to exist between all of them. It follows in the present case that, even if the appeals against infringement by alleged cartel members other than the appellant had succeeded, that would in European law have made no difference to the findings as to the existence and scope of the complex of agreements and concerted practices in the relevant sector to which the Commission Decision found the appellant to have been party. The Commission Decision would have remained as against the appellant in full force and effect. That being the (only) Decision against the appellant in European law, it is also the only decision to which section 47A(5) and (9) apply. The respondents submission that a successful appeal by other alleged cartel members either nullifies or pro tanto modifies the existence of the relevant decision for the purpose of section 47A(5) would mean that there existed at one and the same time an unmodified decision for European purposes and an annulled or modified decision for domestic law purposes. That is the opposite of what section 47A postulates. The Tribunal, in dealing with civil claims, would not be bound by the European legal decision establishing that the prohibition had been infringed, as section 47A(9) contemplates, but by a different scheme developed in domestic law inconsistently with European law. The refusal under that domestic scheme of civil relief against the addressees who had not appealed would on its face infringe the European principles that domestic law should reach results consistent with legal rulings binding at the European level and that there should be an effective domestic remedy for breaches of European law established at the European level (see paras 10 and 11 above). Reference was made to other provisions of the Competition Act 1998, such as sections 32, 36 and 46, dealing with the Office of Fair Tradings powers to make a decision that an agreement infringes the prohibition in Chapter I of that Act, and enabling any party to such an agreement to appeal to the Tribunal. These provisions may well raise a similar issue to the present in a purely domestic context (especially bearing in mind the provisions of section 58A paralleling section 47A), but, however that may be, they cannot in my opinion affect its answer in the context of section 47A. More generally, there is nothing surprising in domestic law about the proposition that a successful appeal by only one defendant held liable at first instance in conspiracy leaves unaffected the liability of another defendant also held liable at first instance for the same conspiracy, in the absence of any appeal by that other defendant. The Court of Appeal recognised under its first head that section 47A proceeds on the basis that liability for infringement would already have been established in the Commission Decision and that only issues of causation, quantum and contribution would remain for the Tribunal or domestic courts to decide (see para 13 above, and paras 105 and 108 of the Court of Appeals judgment). But this assumes that the Commission Decision will have decided all issues regarding the scope of the cartel. Otherwise, substantial issues regarding the nature of the infringement would remain for the Tribunal or domestic courts. That assumption is not easy to reconcile with the Court of Appeals reasoning in its second main head, that the references to a decision establishing that the prohibition has been infringed are quite general in their natural and ordinary meaning, and do not refer to a decision against, or as regards, a particular party or particular addressee of the Commission Decision (see para 14 above). The assumption is however clearly correct. The decision referred to in section 47A cannot be a decision in the air that there was an unspecified infringement. It must be a decision that a cartel existed between specified parties during specified periods, that is, the decision in the operative part of a Commission Decision to which the Court of Justice referred in AssiDomn, paras 53 55. It is the decision found in the present case in article 1 of the operative part of the Commission Decision. As the Court of Appeal put it in a decision cited by Mr Jon Turner QC in his submissions for the respondents, section 47A has the effect that the defendant cannot deny that it has committed whatever infringement the regulator has found and that the decision that there was an infringement, and a particular infringement, is conclusive: Enron Coal Services Ltd v English Welsh and Scottish Railway Ltd (No 2) [2011] EWCA Civ 2, [2011] UKCLR 303, paras 50 and 53. Further, What the Tribunal cannot adjudicate on, in a claim for damages, is whether there has been any, and if so what, infringement: Enron, para 142. Finally, however, contrary to the Court of Appeals reasoning in its second head, the Commission Decision is addressed separately to each addressee, so that a successful appeal by one addressee has no effect on its validity against another addressee who has not appealed. The third head of the Court of Appeals reasoning proceeds to a considerable extent upon a basis which begs the essential issue. It is only possible to speak of awaiting a final decision on infringement to be given on an appeal to the European Court of Justice by another addressee of the Commission Decision, if that appeal is capable of affecting the Commission Decision in so far as it impacts on an addressee who has not appealed. As regards the Commission Decision on the scope of the cartel, on the basis of which questions of causation and quantum will fall to be decided as against an addressee who has not appealed, this will not be the case. Only as regards contribution could it be the case, in so far as a successful appeal by another addressee will deprive an addressee who has not appealed of a potential contributing party. In practice, it may therefore be appropriate to adjourn the determination of contribution proceedings, until all appeals by other addressees have been determined. But it remains the case that, as against a non appealing addressee, the Commission Decision that there has been a cartel involving all addressees stands, even though some of them may and do appeal successfully. That the appellant would, in other circumstances, have been likely to argue the opposite sheds no doubt on this. In the respondents submission, the practical difficulties or incongruities do not end there. If (as in AssiDomn) only some addressees appeal, and are successful on appeal in having a finding that there was a cartel annulled, how, the respondents ask, could or would the Tribunal or High Court determine questions of causation or quantum as against an addressee who had not appealed? The answer in my opinion is that the Tribunal or High Court would have to determine all such questions on the basis that there was a cartel as the Commission had held, bindingly, against the non appealing addressee of its Decision. In the result, therefore, a non appealing addressee of a Commission Decision may, at least theoretically, find itself carrying full civil liability (without any fellow cartel members from which it may seek contribution) in respect of a cartel, the existence of which has been negatived on appeal by its alleged fellow cartel members. All that can be said is that, if there was really no cartel (or a more limited cartel than found by the Commission Decision), it might be difficult for a claimant to prove that it had suffered any loss caused thereby. Further, in the case of a whistle blower like the present appellant, a hypothesis of no cartel is self evidently unreal. Finally, of course, the situation is likely to remain hypothetical in most cases, as it did in the present. In the result, none of the heads of the Court of Appeals reasoning is in my opinion sustainable. A Commission Decision establishing infringement of article 81 (now article 101) constitutes in law a series of individual decisions addressed to its individual addressees. The only relevant decision establishing infringement in relation to an addressee who does not appeal is the original Commission Decision. Any appeal against the finding of infringement by any other addressee is irrelevant to a non appealing addressee. Under section 47A(5), the relevant decision establishing that article 81 had been infringed is thus in the present case the Commission Decision dated 3 December 2003, and, once the time for the appellant to appeal against that Decision had expired on 13 February 2004, the respondents had under section 47A(8) two years within which to bring a follow on claim. The follow on claim for civil damages which the respondents in fact only made on 15 December 2010 was thus out of time. The appeal falls accordingly to be allowed, the Court of Appeals judgment must be set aside, and the Tribunals judgment dated 25 May 2011 striking out the respondents claim restored. |
Ms Reilly, the head teacher of a primary school, is in a close relationship with Mr Selwood but it is not sexual and they do not live together. Mr Selwood is convicted of making indecent images of children. Ms Reilly has previously been unaware of his criminal activities. She fails to inform the schools governing body of his conviction with the result that, when it learns of it, her employer summarily dismisses her. The Employment Tribunal (the tribunal) decides that, save in an irrelevant procedural respect, her dismissal has not been unfair. Should the tribunals decision stand? The school is now an academy but at the relevant time it was maintained by Sandwell Metropolitan District Council (Sandwell), which is the respondent to Ms Reillys appeal to this court. Before the tribunal the schools governing body was a second respondent to her claim but, when it became an academy, the governing body ceased to exist and its liabilities were transferred to Sandwell. This court orders an end to its ghostly presence as a second respondent to the appeal. Ms Reilly appeals against an order of the Court of Appeal dated 19 July 2016, [2016] EWCA Civ 766, [2016] IRLR 779, in which she was referred to as A and Sandwell was referred to as B local authority. By a majority (Black and Floyd LJJ, the dissentient being Elias LJ), the court dismissed Ms Reillys appeal against an order of the Employment Appeal Tribunal (the EAT) dated 20 February 2014. The EAT (Wilkie J presiding) had dismissed Ms Reillys appeal against the order of the tribunal disseminated on 2 November 2012 that, save in the irrelevant procedural respect, her dismissal had not been unfair. Ms Reilly qualified as a teacher in 1987 and, prior to becoming the head teacher of the school, she had been a deputy head teacher in two other primary schools and an acting head teacher in two others. Her disciplinary record was exemplary. Ms Reilly met Mr Selwood in 1998 and they became close friends. In 2003 they bought a property as an investment in their joint names and set up a joint bank account out of which to pay the mortgage instalments. Mr Selwood lived there without making any payment to Ms Reilly. She never lived there with him but she sometimes stayed there overnight. One such night was 24 February 2009. Thus it was that, early the following morning, she was witness to the arrival at the property of the police, to their search of it and to their arrest of Mr Selwood on suspicion of having downloaded indecent images of children online. One month previously Ms Reilly had applied for the post of head teacher at the school. During the progress of her application in the following months Ms Reilly never disclosed Mr Selwoods arrest to Sandwell. It is possible that at first she considered him to be innocent of the allegations against him. But there clearly came a time, not identified in the evidence, when she realised that he was guilty and likely to be convicted; and nothing turns on when that time came. Ms Reilly was duly appointed to be head teacher of the school and she took up the position on 1 September 2009. On 1 February 2010 Mr Selwood was convicted of making indecent images of children by downloading them onto his computer. On a rating system under which level 5 is the maximum, the images were graded at levels 1 to 4. He was made the subject of a three year community order; and of a sexual offences prevention order, which included a prohibition on his having unsupervised access to minors and a requirement to participate in a sex offender programme. Ms Reilly became immediately aware of Mr Selwoods conviction but in the following months she decided not to disclose it to the governing body of the school or indeed to Sandwell. Her close friendship with him continued. In April 2010 they went on holiday together. He named her as an authorised driver on his motor insurance policy. In June 2010 Sandwell learnt of Mr Selwoods conviction and of Ms Reillys close relationship with him. It suspended her on full pay and in due course it summoned her to attend a disciplinary hearing to answer an allegation that, in having failed to disclose her relationship with a man convicted of sexual offences towards children, she had committed a serious breach of an implied term of her contract of employment, which amounted to gross misconduct. In May 2011 the disciplinary hearing took place. The panel consisted of the chair of the governors of another primary school and two governors of the school. Ms Reilly was represented by a solicitor. The panel upheld the allegation to which I have referred and, particularly in the light of her continuing refusal to accept that her relationship with Mr Selwood might pose a risk to pupils at the school and that her failure to disclose it had been wrong, it decided that she should be summarily dismissed. On 11 May 2011 Sandwell confirmed her dismissal with immediate effect. She appealed to an appeal panel which, in July 2011, dismissed her appeal. In August 2011 Ms Reilly presented a claim to the tribunal that her dismissal had been unfair. The substantive hearing of her claim took place over four days in September 2012, at which Ms Reilly had the benefit (which she has continued to have) of representation by Mr Palmer. In its written judgment the tribunal analysed with care the evidence placed before the disciplinary panel. It noted that in her written statement to the panel Ms Reilly had said that in 2009 and 2010 she had asked numerous people, including a police officer, probation officers and officers of other local authorities, whether she had a duty to disclose her relationship with Mr Selwood to the governing body and that their answer had been that she had no duty to do so. The tribunal found, however, that her evidence to it in this regard had been unclear; it noted that two of the probation officers identified in her statement had given statements in which they had denied that their advice to her had been as she had alleged; and it observed that, shortly after Mr Selwoods conviction, a third probation officer had, by letter, advised her that it would be wise to disclose her relationship with him. The tribunal found that the reason for Sandwells dismissal of Ms Reilly was that she had that Sandwell genuinely believed that the non disclosure amounted to a) failed to disclose her relationship with a convicted sex offender; b) misconduct; c) that there were reasonable grounds for Sandwells belief in that it was obvious that for a head teacher to have failed to disclose such information to her governing body whether it is expressed in her contract of employment or not is a matter of misconduct; and that, notwithstanding Ms Reillys exemplary disciplinary record but d) in the light, among other things, of her continuing refusal to accept that her non disclosure had been wrong, her dismissal had been within the range of reasonable responses open to Sandwell. Nevertheless the tribunal proceeded to find that the hearing of Ms Reillys appeal by the appeal panel had been so unsatisfactory as to render her dismissal procedurally unfair. In the light, however, of its conclusion that, even had the hearing been satisfactory, there was a 90% chance that her appeal would still have been dismissed, it directed that her compensation be reduced by 90% in accordance with the approach indorsed in Polkey v A E Dayton Services Ltd [1988] 1 AC 344. But the tribunal went further: pursuant to section 123(6) of the Employment Rights Act 1996 (the Act), it also concluded that she had contributed to her dismissal by blameworthy conduct and it assessed her contribution at 100%. Although, including in her appeal to this court, she has challenged the tribunals conclusions in both these respects, Ms Reilly accepts that the challenge would become live only if the court were to set aside the tribunals decision that, substantively, her dismissal was not unfair. A tribunals inquiry into whether a dismissal is unfair is governed by section 98 of the Act. The first part of the inquiry, governed by subsections (1) to (3), is whether the employer has shown both the reason for the dismissal and that the reason relates to the employees conduct or falls within another part of subsection (2) or otherwise justifies dismissal. In this case the employer showed the reason for the dismissal, namely the non disclosure, and that it related to Ms Reillys conduct. The case turns on the second part of the inquiry, governed by subsection (4) of section 98 of the Act. It provides that the tribunals determination of whether a dismissal is unfair (a) depends on whether in the circumstances the employer acted reasonably or unreasonably in treating [the reason shown by it] as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. A tribunals inquiry into whether the employer acted unreasonably in treating the reason as sufficient for dismissal seems simple enough in principle, albeit no doubt often difficult in application. The later reference to a determination in accordance with the merits of the case might have suggested that the tribunal somehow had a more direct function in appraising the dismissal; but any such suggestion was dispelled in the judgments of the Court of Appeal in Orr v Milton Keynes Council [2011] EWCA Civ 62, [2011] ICR 704, at paras 62 to 64 and 91 to 98. At all events the proper approach to the inquiry under subsection (4) is now firmly established at the level of the Court of Appeal; and the parties to this appeal do not invite this court to review it. The proper approach to the inquiry under what is now subsection (4) has long been regarded to have been set out in the judgment of the EAT (Arnold J presiding) in British Home Stores Ltd v Burchell (Note) [1980] ICR 303. In the present case Elias LJ described it as the classic formulation of the employers obligation in misconduct cases. In the passage of the judgment at p 304 frequently cited, the EAT, through Arnold J, held that the tribunal had to be satisfied first that the employer believed that the employee was guilty of misconduct; second that it had reasonable grounds to sustain its belief; and third that, prior to forming its belief, it had carried out a reasonable amount of investigation into the matter. It is at once apparent that the three requirements identified by Arnold J do not well fit the inquiry mandated by what is now section 98(4). It is indeed clear that, on the contrary, they were directed to the first part of the inquiry under what is now section 98(1) to (3). Unlike in the present case, in which the conduct the non disclosure is an agreed fact, the employees alleged conduct is often disputed. So it was in the British Home Stores case. The issue there was whether, which she denied, the employee in the store had dishonestly abused her right to buy its goods at a discount. To the tribunals resolution of that disputed issue relating to her conduct, Arnold Js three requirements, which all related to belief in the employees guilt, fitted perfectly. Applying them, the EAT held that the store had reasonable grounds for its belief that the employee had conducted herself dishonestly and which was not separately considered because it followed so obviously that therefore, under a precursor to section 98(4), it had been reasonable for the store to treat her conduct as a sufficient reason for her dismissal. But, although the judgment of Arnold J on behalf of the EAT in the British Home Stores case did not relate to the inquiry mandated by what is now section 98(4) of the Act, the Court of Appeal has for long applied it to that inquiry. Thus, in Foley v Post Office [2000] ICR 1283 Mummery LJ, with whom the other members of the court agreed, stated at 1287 1288 that the tripartite approach there explained by Arnold J governed not only the reason for a dismissal but its reasonableness or unreasonableness. Since then the Court of Appeal has consistently adopted the same view of the breadth of Arnold Js judgment: see for example Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470, [2013] ICR 525, para 1. Nevertheless, so far as I can see albeit in the absence of full argument, no harm has been done by the extravagant view taken of the reach of the judgment of Arnold J in the British Home Stores case. In effect it has been considered only to require the tribunal to inquire whether the dismissal was within a range of reasonable responses to the reason shown for it and whether it had been preceded by a reasonable amount of investigation. Such requirements seem to me to be entirely consonant with the obligation under section 98(4) to determine whether, in dismissing the employee, the employer acted reasonably or unreasonably. On any view it is clear that the tribunal is at one remove from answering the direct question: was the dismissal unfair? Instead it must answer the question: was the dismissal within the range of reasonable responses to the reason shown for it by the employer? Indeed all appellate bodies, namely the EAT and, in this case, also the Court of Appeal and this court, are at two removes from answering the direct question. For, under section 21(1) of the Employment Tribunals Act 1996, an appeal against the tribunals decision lies only on a point of law and therefore, in the absence of procedural error, can succeed only if for some reason the tribunals decision was not open to it or, in other words, only if the tribunal had not been entitled to reach it. Thus, in the present case, the EAT correctly identified the question to be whether the tribunal had been entitled to conclude that this was a case in which dismissal did fall within the range of reasonable responses. The exercise required of an appellate body is not always easy. It might, for example, be an intellectual struggle for it to conclude: left to ourselves, we would not have considered that the dismissal fell within the range of reasonable responses but the tribunal was entitled to conclude that it did so. But those of us required to determine these appeals must conduct the exercise as best we can. Ms Reillys challenge to the tribunals decision rests primarily upon a challenge to its acceptance of the panels conclusion that she was under a duty to disclose her relationship with Mr Selwood. Sandwell responds that the tribunal was correct to accept that she was under that duty. It seems that an employees conduct within the meaning of section 98(2)(b) of the Act can precipitate a fair dismissal even if it does not constitute a breach of her contract of employment: see the observation of Phillips J on behalf of the EAT in Redbridge London Borough Council v Fishman [1978] ICR 569, 574, adopted by the EAT in Weston Recovery Services v Fisher UKEAT/0062/10/ZT at para 13. But in the present case Sandwell contends that the duty of disclosure did arise under Ms Reillys contract of employment. Section 175(2) of the Education Act 2002 provides: The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school. Ms Reillys job description included a requirement to advise, assist and inform the Governing Body in the fulfilment of its responsibilities and to be accountable to the Governing Body for the maintenance of the safety of all pupils. She was therefore, as she accepts, under a contractual duty to assist the governing body in discharging its duty to exercise its functions with a view to safeguarding the pupils. Indeed the disciplinary provisions in her contract of employment identified a failure to report something which it was her duty to report as being an example of conduct which might lead to disciplinary action. But (asks Ms Reilly) where was the evidence which suggested that her particular relationship with Mr Selwood engaged the governing bodys safeguarding functions? The panel proceeded on the basis that the evidence existed. The tribunal observed that it was obvious that her relationship engaged its functions. The EAT held that the tribunals view was open to it, as did Black and Floyd LJJ. Elias LJ, on the other hand, held that the answer to Ms Reillys question was that there was no such evidence. As it happens, Parliament has itself recognised that sexual offenders towards children can represent a danger to children not only directly but indirectly by operating through those with whom they associate. The Childcare Act 2006 and regulations made under it contain a good example, albeit not cited to the tribunal. Sections 34(1) and 53(1) require those providing childcare in specified circumstances for children aged under eight to be registered. Regulation 4 of the Children (Disqualification) Regulations 2009 (SI 2009/1547), made under section 75(2) of that Act, would, subject to waiver, disqualify Mr Selwood from registration. But what is significant for present purposes is regulation 9, which disqualifies from registration a person who lives in the same household as a disqualified person or in a household in which a disqualified person is employed. Although the registration provisions do not apply to maintained schools and, even if they did apply, would not have led to the disqualification of Ms Reilly, who did not live in the same household as Mr Selwood, they illumine the democratic judgement about the danger posed to children by such an offender in operating through his close associates. Although no doubt in some cases the offender can persuade his associates consciously to assist him to gain access to children, they can, as in her judgment Black LJ observed, be quite unaware of the use which he makes of them in order to gain access. The particular case of Ms Reilly is that of a head teacher, likely to know more than any other member of staff about the pupils, their circumstances at home, their personalities, their routines at school and their whereabouts from day to day; and indeed likely to be more able than any other member of staff to authorise visitors freely to enter school premises. The tribunal found that Ms Reilly herself knew that she was subject to a duty to disclose because she would not otherwise have made enquiries as to the circumstances in which disclosure was triggered. The proposition is, with respect, illogical. Nevertheless her wide ranging inquiries show how near to the border line even she, with understandable reluctance, recognised her case to be. The objective decision makers on the panel, all school governors, ruled that the case fell on the side of the line which required disclosure. Mr Selwood was the subject of a serious, recent conviction. The basis of his sentence was that he represented a danger to children. His relationship with the head of the school created, to put it at its lowest, a potential risk to the children. The risk required assessment. It was not for Ms Reilly to conduct the assessment; it was a function of the governors. As head teacher, she represented, as Ms Hannett on behalf of Sandwell submits, the eyes and ears of the governors in the school. Had she disclosed her relationship to them, it is highly unlikely that she would have been dismissed, still less that the tribunal would have upheld any dismissal as fair. Far more likely would have been the extraction by the governors of promises by Ms Reilly that she would not allow Mr Selwood to enter the school premises and perhaps, for example, that outside the school she would not leave information about pupils, for example stored electronically, in places where he might be able to gain access to it. In my opinion the tribunal was entitled to conclude that it was a reasonable response for the panel to have concluded that Ms Reillys non disclosure not only amounted to a breach of duty but also merited her dismissal. For her refusal to accept that she had been in breach of duty suggested a continuing lack of insight which, as it was reasonable to conclude, rendered it inappropriate for her to continue to run the school. So I would dismiss the appeal. LADY HALE: I agree entirely, for the reasons given by Lord Wilson, that Ms Reilly was in breach of her contract of employment by not informing her employers of her connection with Mr Selwood. Ms Reilly had a duty to advise, assist and inform the Governing Body in the fulfilment of its safeguarding responsibilities towards the schools pupils. Those who are guilty of sexual offences against children pose a risk to the safety of other children both directly and indirectly. There are many ways in which Mr Selwood, should he choose to do so, might have used his friendship with Ms Reilly to gain access to the schools pupils: not only through being allowed to visit the school but also through finding out information about the pupils. Reporting the connection would have enabled a serious discussion to take place about how those risks might be avoided. There is no reason to think that it would have been a resigning matter. Issues could have been identified and solutions found. It is the absence of that full and frank disclosure and discussion which was the cause for serious concern. And it is the absence of any acknowledgement of what she should have done which makes the decision to dismiss her reasonable, indeed some might think it inevitable. The case might have presented an opportunity for this court to consider two points of law of general public importance which have not been raised at this level before. The first is whether a dismissal based on an employees conduct can ever be fair if that conduct is not in breach of the employees contract of employment. Can there be conduct within the meaning of section 98(2)(b) which is not contractual misconduct? Can conduct which is not contractual misconduct be some other substantial reason of a kind such as to justify the dismissal within the meaning of section 98(1)(b)? It is not difficult to think of arguments on either side of this question but we have not heard them we were only asked to decide whether there was a duty to disclose and there clearly was. Nor have we heard any argument on whether the approach to be taken by a tribunal to an employers decisions, both as to the facts under section 98(1) to (3) of the Employment Rights Act 1996 and as to whether the decision to dismiss was reasonable or unreasonable under section 98(4), first laid down by the Employment Appeal Tribunal in British Homes Stores Ltd v Burchell (Note) [1978] ICR 303 and definitively endorsed by the Court of Appeal in Foley v Post Office [2000] ICR 1283, is correct. As Lord Wilson points out, in para 20 above, the three requirements set out in Burchell are directed to the first part of the inquiry, under section 98(1) to (3), and do not fit well into the inquiry mandated by section 98(4). The meaning of section 98(4) was rightly described by Sedley LJ, in Orr v Milton Keynes Council [2011] ICR 704, at para 11, as both problematical and contentious. He referred to the cogently reasoned decision of the Employment Appeal Tribunal (Morison J presiding) in Haddon v Van den Burgh Foods [1999] ICR 1150, which was overruled by the Court of Appeal in Foley. Even in relation to the first part of the inquiry, as to the reason for the dismissal, the Burchell approach can lead to dismissals which were in fact fair being treated as unfair and dismissals which were in fact unfair being treated as fair. Once again, it is not difficult to think of arguments on either side of this question but we have not heard them. There may be very good reasons why no one has challenged the Burchell test before us. First, it has been applied by Employment Tribunals, in the thousands of cases which come before them, for 40 years now. It remains binding upon them and on the Employment Appeal Tribunal and Court of Appeal. Destabilising the position without a very good reason would be irresponsible. Second, Parliament has had the opportunity to clarify the approach which is intended, should it consider that Burchell is wrong, and it has not done so. Third, those who are experienced in the field, whether acting for employees or employers, may consider that the approach is correct and does not lead to injustice in practice. It follows that the law remains as it has been for the last 40 years and I express no view about whether that is correct. |
This appeal is all about the Secretary of States right to recover certain social security benefits. As everyone knows, a large amount of public money is spent upon a whole range of such benefits. Entitlement to these in all cases requires first a claim and then an award. Inevitably on occasion overpayments occur. Sometimes more is paid than the sum awarded. For example, following an award, say, of 60 a claimant may be sent by mistake a cheque for 120 or two cheques each for 60. These cases present no difficulty. Everyone agrees that unauthorised payments of this kind are recoverable by the Secretary of State as money paid by mistake. The problem arises rather when overpayments are made in accordance with an award but the award itself is higher than it should be. It is common ground that before any question can arise as to recovering the sums overpaid in these cases the mistaken award must first be revised. And it is common ground too that following such revision the Secretary of State is entitled to recover any overpayment resulting from misrepresentation or the non disclosure of a material fact. All this is expressly provided for by section 71 of the Social Security Administration Act 1992 (the 1992 Act). But does section 71 provide an exclusive code for recovery? That is the question. In short, what is in issue in this appeal is whether in other cases of mistakenly inflated awards most obviously in cases arising from official error (as it is called in Regulations to which I shall come) the Secretary of State is entitled to recover the sums overpaid. This question arises, for example, where a claimant has notified a change of circumstances (such as that he has begun full time work or that his child has left the household) and by mistake the Department overlooks (or delays actioning) the notification and continues making benefit payments at the same rate; or, indeed, where there is simply an erroneous calculation of the award. In cases like that is the Secretary of State permitted to seek recovery of such overpaid benefits at common law or is the exclusive route to recovery that provided by section 71 of the 1992 Act? The judge at first instance, Michael Supperstone QC, sitting as a deputy High Court Judge, found in favour of the Secretary of State [2009] EWHC 341 (Admin), [2009] 3 All ER 633. The Court of Appeal (Sedley, Lloyd and Wilson LJJ) [2009] EWCA Civ 1058, [2010] 1 WLR 1886 allowed the Child Poverty Action Groups appeal and declared: where a benefit falling within section 71(11) of the Social Security Administration Act 1992 is paid pursuant to the machinery contained in Part I Chapter II of the Social Security Act 1998, it can only be reclaimed from the claimant under section 71 of that Act (or some other specific statutory provision). The Secretary of State now appeals to this Court. The circumstances in which the question arose for decision can be briefly told. At some unspecified date (seemingly in about 2006) the Secretary of State adopted a practice of writing to benefit claimants who he considered had been overpaid, but where there had been no misrepresentation or non disclosure, indicating that the Department had a common law right of action to recover the overpayment. The letters were in substantially standard form accompanied by a document headed Questions you might have about the overpayment and asserted essentially that a mistake had been made, that too much of the relevant benefit had been paid and that the law allows us to ask you to pay back money that should not have been paid (or words to like effect). From March 2006 to February 2007 some 65,000 such letters were sent. Although no common law claim for repayment was ever in fact brought in the courts, the letters led, we are told, to the recovery of substantial sums for example, just over 4m in the year 2007/8. The Child Poverty Action Group, however, an organisation with a long history of bringing legal test cases on behalf of social security claimants, thought the letters were based on a false legal premise and so brought this challenge to seek appropriate declaratory relief. Thus it was that the issue came before the courts. It is convenient at this point to set out the more material parts of section 71 of the 1992 Act (as amended). Section 71 appears in Part III of the Act under the title Overpayments and Adjustments of Benefit Misrepresentation etc: 71. Overpayments general. (1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure (a) a payment has been made in respect of a benefit to which this section applies; or (b) any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered, the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose. (2) Where any such determination as is referred to in subsection (1) above is made, the person making the determination shall in the case of the Secretary of State or the First tier Tribunal, and may in the case of the Upper Tribunal or a court (a) determine whether any, and if so what, amount is recoverable under that subsection by the Secretary of State, and (b) specify the period during which that amount was paid to the person concerned. (3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it. (5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998. (8) Where any amount paid, other than an amount paid in respect of child benefit or guardians allowance, is recoverable under (a) subsection (1) above; it may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits. (9) Where any amount paid in respect of a couple is recoverable as mentioned in subsection (8) above, it may, without prejudice to any other method of recovery, be recovered, in such circumstances as may be prescribed, by deduction from prescribed benefits payable to either of them. (10) Any amount recoverable under the provisions mentioned in subsection (8) above (a) if the person from whom it is recoverable resides in England and Wales and the county court so orders, shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court; . Section 71(11) lists the various benefits to which the section applies. It is unnecessary to reproduce it here. It is important to note that when the 1992 Act was passed, indeed at all times before 1998, the adjudication of awards and the payment of awards were constitutionally separate functions. Adjudication officers (and, before them, other independent officers) were responsible for all decisions concerning the making of awards, the Secretary of State for their payment. By sections 1 and 8 of the Social Security Act 1998 (the 1998 Act), however, the functions of adjudication officers were transferred to the Secretary of State who thereupon became the primary decision maker in relation to the making of awards as well as remaining responsible for their payment. Prior to this merger of functions there had been provision for the revision of awards on a review (as well as the reversal or variation of awards on appeal). The 1998 Act introduced new provisions enabling the Secretary of State (by section 9) to revise, and (by section 10) to supersede, his section 8 decisions. This explains the language of section 71(5A). Essentially the same provision, however, had been made in section 71(5) which it replaced. As already noted, there could be no question of the Secretary of State ever seeking to recover an overpayment until the relevant award in one way or another had been formally corrected. These sections can be seen to reflect other provisions too in the governing legislation: regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) which imposes a statutory duty on the Secretary of State to pay the benefit awarded for an indefinite period, and section 17 of the 1998 Act by which the Secretary of States decision is declared to be final. The next matter to note is that the 1992 Act was a consolidating statute. The immediate forerunner of section 71 had been section 53 of the Social Security Act 1986 which in turn had replaced both section 20 of the Supplementary Benefits Act 1976 governing the recovery of overpayments of the main non contributory benefits and section 119 of the Social Security Act 1975 which governed the recovery of overpayments of contributory benefits. Section 119 had provided a defence if the claimant showed that he had exercised due care and diligence to avoid overpayment. All the other provisions had adopted the test of misrepresentation or failure to disclose that is now re enacted in section 71(1). The final point to note from the statutory material is the express provision made by regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (the 1999 Regulations) for a decision of the Secretary of State under section 8 or 10 of the 1998 Act to be revised with retrospective effect at any time if, inter alia, it arose from an official error. Against this basic statutory background the Court of Appeal reached essentially the following conclusions. The statutory scheme provides for the revision of awards of benefit ab initio and once an award has been revised it is final in its revised form. Downward revision shows that the claimant was not, in fact, entitled to the whole of the payments received. It is rational for the legislature to make provision for the consequences and it is by section 71 alone that it has done so. Under section 71 no amount is recoverable unless the relevant determination has been successfully appealed, revised under section 9 or superseded under section 10. Section 71(1) then sets out the (sole) circumstances in which the Secretary of State is entitled to recover an overpayment made pursuant to an award. These include only cases where the original award was obtained by misrepresentation or non disclosure, and exclude cases of receipt even knowing receipt of an overpayment due to a mistaken award. When section 71 was enacted, adjudication was separate from administration. The established statutory scheme had always been understood to be exhaustive of the rights, obligations and remedies of both the individual and the state, and both then and since, awards have been conclusive of the obligation to pay and of the right to receive payment. In such a context it is unsurprising that the power of recovery when an award is modified should be prescribed by Parliament and not at large. Section 71 has not excluded any power of recovery that was previously available but has created a power of recovery where otherwise there is none. Mr Eadie QC for the Secretary of State disputes those conclusions. He contends that the Crowns common law right to recover benefits overpaid by mistake of fact or law is not excluded by the legislation either expressly (so much is clear) or by necessary implication. There is, submits Mr Eadie QC, nothing inconsistent between the express right of recovery in cases of misrepresentation and non disclosure provided for by section 71(1) and the common law right to seek recovery in other cases. The statutory right applies only to a limited class of cases and, where it does apply, it confers greater rights on the Secretary of State than would be available at common law. It does not allow the recipient of the benefit to rely (as would a common law claim) on a defence of change of position. And it allows recovery (a) from the person who misrepresented the fact or failed to disclose it (section 71(3)), (b) by deduction from prescribed benefits (section 71(8)), and (c) in certain circumstances from the prescribed benefits payable to either member of a couple (section 71(9)). All this is no doubt understandable: it is logical for Parliament to prescribe an easier route to recovery of overpayments against those actually responsible by misrepresentation or non disclosure for the making of the mistaken awards in the first place. But non constat that this should be the only route to recovery. After all, the misrepresentation or non disclosure might have been entirely innocent and the moral case for repayment against the recipient of an award inflated by official error might actually be stronger. The error might have been plain, obvious and major and the recipient well aware of it but determined to take advantage of it none the less. Such a view is supported too by regulation 3(5)(a) of the 1999 Regulations. Why make provision for the retrospective revision of mistaken awards arising from official error if it is not possible then to remedy the mistake? True, if the error disadvantages the claimant and he is underpaid, the error can be remedied retrospectively. But if the error leads to overpayment and the Child Poverty Action Group are right, there can be no recovery against the recipient. This would represent a lacuna in the scheme. Mr Eadie in addition seeks to pray in aid what he submits is the analogous decision of the House of Lords in Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49, [2007] 1 AC 558 (DMG) by which the taxpayer was held entitled at common law to recover an overpayment of tax notwithstanding a statutory provision comprehensively dealing with overpayments in the case of anyone who has paid [income tax or capital gains] tax charged under an assessment (section 33 of the Taxes Management Act 1970). Given that section 33 did not apply in that case because there had been no valid assessment, the taxpayer was held permitted to bring a common law restitution claim. It is Mr Eadies submission that by the same token, given that the Secretary of State here cannot recover under section 71(1) save in cases of misrepresentation or non disclosure, he should in other cases be entitled to seek recovery at common law. I have not found this an altogether easy case and, like Sedley LJ in the court below, regard the arguments as closely balanced. In the end, however, with Mr Drabble QCs help, I have come to the same conclusion as the Court of Appeal, namely that section 71 constitutes a comprehensive and exclusive scheme for dealing with all overpayments of benefit made pursuant to awards. Essentially my reasoning is as follows. As everyone agrees, no question of the recovery of any overpayment can arise until the award has been corrected. So far as recovery under section 71(1) is concerned, this indeed is expressly stipulated by section 71(5A) (and section 71(5) before it). But it would be surprising to find a common law right to restitution on grounds of mistake to be similarly constrained and more surprising still to find no relevant provision (akin to section 71(1)) giving effect to such a right. As already noted, when section 71 was enacted, there was a division of functions between the adjudication of awards and their payment. Since the Secretary of State paid the benefit awarded pursuant to a statutory duty, there could be no question of his having made a mistake of fact or law in making the payment. Thus, as the Court of Appeal noted, section 71 and its predecessor sections created a power of recovery when otherwise there would have been none. This explains too why section 71 contains no express exclusion of any common law right of recovery: there simply was none and it is hardly surprising that no such exclusion was inserted in 1998 when the adjudicatory and payment functions merged. What, in short, is striking about section 71 is not its omission of an express exclusion of common law rights but rather its omission of any provision recognising or giving effect to any such rights. As is well known, common law restitution claims are, at the best of times, far from straightforward. Not the least of their difficulties, a difficulty at its most pronounced in the context of social security benefit claimants, is the defence of change of position. Part III of the 1992 Act provides, of course, not just for an express entitlement to recover overpaid benefits in cases of misrepresentation or non disclosure, but also for the whole process of determining the facts relevant to such entitlement, including making provision for appeals to a tribunal. It seems to me inconceivable that Parliament would have contemplated leaving the suggested common law restitutionary route to the recovery of overpayments available to the Secretary of State to be pursued by way of ordinary court proceedings alongside the carefully prescribed scheme of recovery set out in the statute. Such an arrangement, moreover, would seem to me to create well nigh insoluble problems. Could there, for example, be parallel recovery proceedings against the maker of the misrepresentation under section 71(3) and against the recipient of the benefit at common law in the courts? And in the event of successful claims, could there then be deduction from prescribed benefits under section 71(8) against the misrepresentor (or possibly against the other member of a couple under section 71(9)) as well as execution against the actual recipient under the ordinary processes of law? With regard to Mr Eadies point that a stronger moral argument for recovery of overpayments may exist in cases of the knowing receipt of mistaken awards than, say, in cases of innocent misrepresentation, I would pose these questions. First, this being so, why would Parliament not prescribe the same stronger recovery powers for these cases as for cases of misrepresentation and non disclosure and include them within the statutory recovery scheme? Secondly, why would Parliament not make express provision for this separate category of cases, similarly prescribing the conditions for the Secretary of States entitlement to recovery, such as that the claimant knew that he had been overpaid and/or that he had not changed his position? The answer to both must surely be that in the case of recipients of social security benefits Parliament from first to last has taken the view that only those who themselves brought about the overpayments should be liable to reimburse them and that in their cases reimbursement should be made easily enforceable. Such a scheme is entirely rational. For better or for worse those benefiting from official errors are not subject to recovery proceedings. I am persuaded that section 71 does indeed necessarily exclude whatever common law restitution rights the Secretary of State might otherwise have. The title to Part III of the Act, Overpayments and Adjustments of Benefit, not merely suggests but to my mind provides for a comprehensive and exclusive scheme for both the correction and consequences of mistaken benefit awards. As for Mr Eadies reliance on the DMG line of cases with regard to the tax regime, for my part I find the suggested analogy unconvincing. This is not for the reasons suggested by the Court of Appeal (see in particular Lloyd LJs judgment at paras 33 35), namely that DMG involved an overpayment to the state whereas the present case involves an overpayment by the state; that, I would agree with Mr Eadie, is neither a logical nor a principled distinction. Rather it is because, whereas section 33 of the Taxes Management Act 1970 only purported to deal with overpayments of tax charged under an assessment, leaving other overpayments to be dealt with outside the statutory scheme, section 71 deals with the overpayment of benefit pursuant to erroneous awards in all cases and, by necessary implication, deals too with the conditions for the recovery of such overpayments. this appeal. In the result, I would endorse the Court of Appeals declaration and dismiss SIR JOHN DYSON SCJ The issue that arises on this appeal is whether the Secretary of State is entitled to recover at common law overpaid social security payments that were made pursuant to a decision made under section 8(1)(a) of the Social Security Act 1998 (the 1998 Act), or whether the right to recovery provided for in section 71 of the Social Security Administration Act 1992 (the 1992 Act) is the exclusive route to recovery. It is not in dispute that this raises a question of statutory interpretation. The answer to the question requires in the first place an understanding of the relevant statutory history. The salient features of the history are these. The immediate precursor to section 71 of the 1992 Act (a consolidating Act) was section 53 of the Social Security Act 1986 (the 1986 Act) whose terms were not materially different from those of the later provision. Before 1986, the rule governing the recovery of overpayments of contributory benefits was contained in section 119 of the Social Security Act 1975 and the rule governing the recovery of the main means tested non contributory benefit (supplementary benefit) was contained in section 20 of the Supplementary Benefits Act 1976. Of critical importance is the fact that until the 1998 Act, there was a division between the adjudicating authorities responsible for fact finding, decisions on legal issues and the quantification of the award on the one hand, and the body responsible for payment on the other. From 1986 onwards, the former was carried out by an adjudication officer and the latter by the Secretary of State. It was only in the 1998 Act that the Secretary of State was made responsible for both the decision on the claim for benefit and the payment of the amount of the award. It follows that the interpretation of section 53 of the 1986 Act and section 71 of the 1992 Act must be considered against the background that at the time of those enactments there was no possibility of mistake on the part of the Secretary of State in the calculation of the award, since he played no part in its calculation. The only possibility of mistake on the part of the Secretary of State lay in the payment of the amount awarded to be paid. It is common ground (and rightly so) that, if the Secretary of State overpaid by mistake, the amount of the overpayment could be recovered by a common law claim in restitution. Section 53(4) of the 1986 Act and section 71(5A) as it now is of the 1992 Act show that the overpayments with which these statutes are concerned are those which result from changes to an award. In deciding whether Parliament intended in 1986 and again in 1992 that the statutory provisions were to be an exhaustive code for recovery of overpayments by the Secretary of State, it is in my view relevant to recognise that at the time of those enactments there was no realistic possibility that the Secretary of State could recover overpayments of benefit in a common law action. By 1986, the law of unjust enrichment or restitution was by no means in its infancy. It was well understood that a person was in principle entitled to recover at common law money paid under a mistake of fact. But under the statutory scheme then in force, there would have been no relevant mistake on which the Secretary of State could have founded such a claim. Mr Eadie QC suggests that it might have been arguable in a case where there had been a mistake in the calculation of the award that a Secretary of State who paid such an award was operating under the mistake that the award was correct and/or that an analogy could properly be drawn with the position that applies where a court judgment is reversed. I acknowledge that such arguments might be advanced today, although I doubt whether they would succeed even now, after the considerable developments that have taken place in recent years in this area of the law. But it seems to me highly unlikely that Parliament would have had such arguments in mind in 1986 or 1992. In my view, the correct premise on which to proceed is that section 53 of the 1986 Act and section 71 of the 1992 Act were drafted on the basis that, as the law then stood, the Secretary of State was not entitled at common law to recover overpayments resulting from errors in the calculation of the award. At first sight, therefore, one might think that this should lead to the conclusion that the statutory provisions for recovery of overpayments were intended to be exhaustive of the right to recovery. There was no common law right to recovery. A statutory right to recovery was introduced. By definition, therefore, the statutory right to recovery was intended to be exhaustive. That was the view of the Court of Appeal as expressed at paras 25 and 27 of the judgment of Sedley LJ and I agree with it. At para 27, he pithily summarised the argument that Mr Drabble QC has repeated in this court which is not that section 71 has excluded any power of recovery that was previously available, but that it has created a power of recovery where otherwise there is none. But Mr Eadie has another string to his bow. He submits that, even if at the time of the enactment of sections 53 and 71 the Secretary of State had no right to recover at common law, it does not follow that, if there were a change in circumstances so that such a right to recover were to arise in the future, it would be precluded by the statutory provisions. As I understand it, Mr Eadie does not contend that the meaning of sections 53 and 71 could change over time. In this context, that would obviously be an untenable proposition. The position would of course be otherwise if section 71 were later amended expressly or by necessary implication. But that is not suggested here. Mr Eadies argument is directed to the true meaning of section 71 in its unamended form but he submits that it cannot be construed as having prospectively excluded by necessary implication a right which was not in contemplation at the time when it was enacted. In other words, Parliament cannot be taken to have excluded the possibility of a common law right to recovery arising in the future under a differently framed decision making scheme. I cannot accept this argument. I proceed on the hypothesis that, as I have already said, at the time when the statutory scheme for recovery of overpayments was enacted, there was no non statutory route for recovery. The statutory scheme was exhaustive at that time. It carefully delineated the boundaries. They were limited to recovery of payments made pursuant to an award by the adjudicating authorities which was in error by reason of a misrepresentation or failure to disclose any material fact. Simple error on the part of the adjudicating authorities was excluded. I would not go so far as to say that Parliament can be taken to have excluded the possibility of a common law right to recovery under a differently framed decision making scheme. That would be to go too far, since it would depend on the terms of the differently framed scheme. But I see no basis for holding that Parliament intended to allow a common law right of recovery in circumstances where the only material difference between the pre 1998 Act scheme and the 1998 scheme is that under the latter the Secretary of State determined the awards. Under the pre 1998 Act scheme, the section 71 code precluded common law claims for mistake, so that the Secretary of State could not recover overpayments where an award was erroneous for one of the statutory reasons. That code was continued after the 1998 Act without any material change. The only difference now was that the Secretary of State was responsible for the calculation of the award. The inevitable inference is that post the 1998 Act, Parliament intended the same exclusive code to continue. There is no basis for holding that the change in the identity of the decision maker, which was not accompanied by any change in the statutory criteria for recovery of overpayments, was intended to open the door any wider to recovery than it previously had been. In my view, that is sufficient to dismiss this appeal. But I need to deal with a further argument advanced by Mr Eadie. This proceeds on the basis that, contrary to the view that I have expressed, in 1986 and 1992 the Secretary of State had a common law right to recover overpayments under ordinary common law restitutionary principles. He accepts that this right could be displaced by statute, but that could only be done expressly or by necessary implication. It is common ground that there was no express abrogation of the right. Nor, Mr Eadie submits, was it abrogated by necessary implication. There are many examples of cases where the court has considered whether the provisions of a statute have impliedly overridden or displaced the common law. In each case, it is a question of construction of the statute in question whether it has done so. Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49, [2007] 1 AC 558 concerned a claim for compensation in respect of the payment of advance corporation tax which had been demanded contrary to the EC Treaty. One of the issues was whether section 33 of the Taxes Management Act 1970 excluded any common law claim on the grounds of mistake. Lord Hoffmann said at para 19: But the question is in the end one of construction. When a special or qualified statutory remedy is provided, it may well be inferred that Parliament intended to exclude any common law remedy which would or might have arisen on the same facts. To similar effect, at para 135 Lord Walker said: When Parliament enacts a special regime providing special rights and remedies, that regime may (but does not always) supersede and displace common law rights and remedies (or more general statutory rights and remedies). Whether it has that effect is a question of statutory construction. A similar issue arose in Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] AC 1174. There the question was whether the statutory scheme for recovery of VAT under the Value Added Tax Act 1994 was exclusive so as to preclude the right at common law to claim damages for unlawful means conspiracy. The House of Lords were split as to the result, but not, I think, as to the correct approach to the problem. Lord Hope said at para 31 that the statutory scheme was comprehensive and does not admit the use by the commissioners of means for collecting VAT which are not provided for by the statute. Lord Scott at para 60 said that an intention to bar common law claims could not be attributed to the legislature when enacting the VAT scheme. Lord Walker (paras 105 to 110) did not agree that the statutory code was comprehensive and exhaustive of the commissioners powers of collection of VAT. Lord Mance (para 130) said that for a statutory scheme to supersede or displace common law rights and remedies, the statute must positively be shown to be inconsistent with the continuation of the ordinary common law remedy otherwise available. He concluded (para 136) that he saw no inconsistency or even incongruity between the statute and the common law remedy in tort. Lord Neuberger identified a number of features of the statutory scheme which both substantively and procedurally were inconsistent with the position in relation to a common law claim. In other words, he explicitly applied the same inconsistency criterion as Lord Mance but, on the facts, reached the opposite conclusion. It will be seen that in these two cases, the court did not apply a test of necessary implication. Mr Eadie derives that test from the context of human rights or the principle of legality explained by Lord Hoffmann and Lord Steyn in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115. He relies, for example, on R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563, where the question was whether section 20 of the Taxes Management Act 1970 overrode legal professional privilege. The House of Lords held that it did not do so. Lord Hoffmann emphasised that legal professional privilege was a fundamental human right long established in the common law. At para 8 he said that an intention to override fundamental human rights must be expressly stated or appear by necessary implication. He referred to the discussion of this principle by Lord Steyn and himself in Ex p Simms and other cases. Lord Hobhouse made the same point. Having referred to Ex p Simms, he said (at para 44) that the principle of statutory construction stated in that case was not new and had long been applied in relation to the question whether a statute is to be read as having overridden some basic tenet of the common law. The protection given by the common law to those entitled to claim legal professional privilege is a basic tenet of the common law as had been reaffirmed by B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428. It is in the context of such a common law right that the passage at para 45 which is relied on by Mr Eadie is to be understood. Lord Hobhouse said: A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation. In the case of B (A Minor), the question at issue was whether liability for an offence contrary to section 1(1) of the Indecency with Children Act 1960 was strict or required the proof of mens rea. It was held by the House of Lords that mens rea was an essential element of every criminal offence unless Parliament expressly or by necessary implication provided to the contrary. In so holding, they were doing no more than applying a well established common law presumption or requirement. Lord Steyn explicitly referred at page 470F to this presumption as the paradigm of the principle of legality. The context in the present case, however, is quite different. The question whether the Secretary of State can recover overpayments of benefit does not involve any fundamental human rights of the Secretary of State nor does it engage the principle of legality. I do not accept the submission that the respondents have to surmount the high hurdle erected by Lord Hutton in B (A Minor) or Lord Hobhouse in Morgan Grenfell. Rather the question is whether, as a matter of statutory interpretation, section 71 is an exclusive code for recovery of overpayments. That question is to be answered not by applying any presumptions or by saying that the common law remedy in restitution is not displaced unless, in Lord Hobhouses words, as a matter of logic, it cannot co exist with the statutory regime for recovery. The importance of the tax cases is that they show that the test is whether in all the circumstances Parliament must have intended a common law remedy to co exist with the statutory remedy. Lloyd LJ sought to distinguish the tax cases to which I have referred on the grounds that payments by the state to a person have nothing to do with the tax regime. He said that the difference between recovery of a social security benefit wrongly paid to a claimant on the one hand and of tax paid by a taxpayer on the other is substantial and significant. Of course, I accept that they are different, but like Lord Brown I do not consider that the difference is material to the question whether Parliament intended a statutory code to displace common law rights and remedies. There is nothing in the reasoning in the tax cases to indicate that the courts were applying a rule which was peculiar to tax cases. Indeed, for example, Lord Mance at para 130 of Total Network SL referred to non tax cases such as Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42 and Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518 as being illustrative of the principle that he had articulated. If the two remedies cover precisely the same ground and are inconsistent with each other, then the common law remedy will almost certainly have been excluded by necessary implication. To do otherwise would circumvent the intention of Parliament. A good example of this is Marcic where a sewerage undertaker was subject to an elaborate scheme of statutory regulation which included an independent regulator with powers of enforcement whose decisions were subject to judicial review. The statutory scheme provided a procedure for making complaints to the regulator. The House of Lords held that a cause of action in nuisance would be inconsistent with the statutory scheme. It would run counter to the intention of Parliament. The question is not whether there are any differences between the common law remedy and the statutory scheme. There may well be differences. The question is whether the differences are so substantial that they demonstrate that Parliament could not have intended the common law remedy to survive the introduction of the statutory scheme. The court should not be too ready to find that a common law remedy has been displaced by a statutory one, not least because it is always open to Parliament to make the position clear by stating explicitly whether the statute is intended to be exhaustive. The mere fact that there are some differences between the common law and the statutory positions is unlikely to be sufficient unless they are substantial. The fact that the House of Lords was divided in Total Network SL shows how difficult it may sometimes be to decide on which side of the line a case falls. The question is whether, looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended by co exist with it. I agree with Lord Brown that, for the reasons he has given, section 71 was intended to be an exhaustive code. Some of the difficulties that he has highlighted at para 14 of his judgment are similar to those mentioned by Lord Neuberger in Total Network SL. As Lord Millett put it in Unisys at para 80 of his speech, the co existence of two systems, overlapping but varying in matters of detailwould be a recipe for chaos. That is a powerful reason for supposing that Parliament intended the statutory code contained in section 71 of the 1992 Act to be exhaustive. For these reasons, as well as those given by Lord Brown, I would dismiss this appeal. LORD RODGER As Lord Brown and Sir John Dyson have explained, until 1998 there was no real possibility of the Secretary of State making a mistake in the calculation of an award that would have founded a common law claim for money paid under a mistake. Precisely for that reason, when originally enacted, section 71 of the Social Security Administration Act 1992 (the 1992 Act) could never have been intended to exclude such a claim. It is therefore, at first sight, surprising if that section has the effect of excluding a claim of that kind which might otherwise have become available when the system was altered in 1998. When it enacted section 71 in 1992, Parliament intended it to be the only basis for the Secretary of State to recover a benefit payment that had been wrongly calculated. The question is whether, when it enacted the Social Security Act 1998, it changed its view. The only provision in that Act which suggests that Parliament may have changed its mind is section 9(3). It provides that, where the Secretary of State revises a decision, the decision is to take effect as from the date on which the original decision took (or was to take) effect. If the respondents approach is correct, in a case where the revision is downwards in favour of the Secretary of State, Parliaments decision to give the revision retroactive effect seems to have no practical effect. That consideration has caused me real difficulties. Section 9(3) creates the problem, however; it does not solve it. If, by enacting section 9(3), Parliament intended the Secretary of State to be able to bring a common law claim for restitution, realistically, it could have been expected to amend section 71 of the 1992 Act. It did not do so. If, on the other hand, Parliament overlooked the possibility of such a claim, then the appropriate conclusion must be that section 71 was to continue to provide the only basis for recovering a benefit that had been wrongly calculated. With some hesitation, therefore, I have come to the conclusion, for the reasons given by Lord Brown and Sir John Dyson, that section 71 should be interpreted as excluding a common law remedy in this situation. Whether a remedy should be available in these cases is a matter for Parliament, not for this Court. LORD PHILLIPS For the reasons given by Lord Brown and Sir John Dyson, which are in perfect harmony, I would dismiss this appeal. I have read and agree with the judgments of Lord Brown and Sir John LORD KERR Dyson. For the reasons that they have given I too would dismiss the appeal. |
A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participationThus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity Arthur JS Hall & Co v Simons [2002] 1 AC 615, 740, per Lord Hobhouse of Woodborough. In Stanton v Callaghan [1998] QB 75 the Court of Appeal held that the immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings pursuant to RSC, Ord 38, r 38. The claim in this case relates precisely to such negligence and was, for that reason, struck out by Blake J on 22 January 2010. He certified, however, that the case involved a point of law of general public importance and granted a leapfrog certificate under section 12 of the Administration of Justice Act 1969, so that this appeal is brought directly from his decision. The narrow issue raised by this appeal is whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit. Mr Ter Haar QC for the appellant was careful to emphasise at the outset of his submissions that he was not concerned to do more than establish that an expert witness enjoyed no immunity in relation to this activity. Inevitably, however, his submissions have raised the broader issue of whether public policy justifies conferring on an expert witness any immunity from liability in negligence in relation to the performance of his duties in that capacity. Surprisingly, this immunity has never been challenged in the past. It has simply been accepted that an immunity which protects witnesses of fact applies equally to prevent a client from suing in negligence the expert that he has retained. The facts In so far as this statement of the facts describes conduct on the part of the respondent, the facts are not proved but asserted in the particulars of claim. They are to be treated as true for the purpose of resolving the question of whether this claim was properly struck out. Understandably, the respondent has not suggested that the facts asserted do not disclose a good cause of action if she is susceptible to liability in negligence. The action has its origin in a road traffic accident that occurred in Liverpool on 14 March 2001. The appellant was stationary on his motorcycle, waiting to turn at a road junction, when he was knocked down by a car driven by a Mr Bennett. Mr Bennett was drunk, he was uninsured and he was driving while disqualified. The appellant suffered significant physical injuries, but these were not of such severity as to dwarf the significance of the psychiatric consequences of his accident. These were post traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome. On 20 March 2001 the appellant instructed solicitors (Kirwans) to act for him in personal injury proceedings. Kirwans instructed a consultant orthopaedic surgeon who advised that an opinion from a clinical psychologist would be of help. The respondent is a consultant clinical psychologist. In May 2003 Kirwans instructed her to examine the appellant and prepare a report for the purposes of litigation. She prepared a report dated 29 July 2003 in which she expressed the view, inter alia, that the appellant was at that time suffering from PTSD. Kirwans issued proceedings on 26 September 2003 against Mr Bennett and the Motor Insurance Bureau. The latter was replaced by the relevant insurer (Fortis). Fortis admitted liability on 17 February 2004, so that only quantum remained in issue. Pursuant to instructions from Kirwans, the respondent carried out a further examination of the appellant and issued a second report dated 10 December 2004. This stated that the appellant did not have all the symptoms to warrant a diagnosis of PTSD, but was still suffering from depression and some of the symptoms of PTSD. A subsequent report prepared by Dr El Assra, a consultant psychiatrist instructed by Fortis, expressed the view that the appellant was exaggerating his physical symptoms. The district judge ordered the two experts to hold discussions and to prepare a joint statement. The discussion took place on the telephone and Mr El Assra prepared a draft joint statement, which the respondent signed without amendment or comment. The joint statement was damaging to the appellants claim. It recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of PTSD. It further stated that the respondent had found the appellant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of conscious mechanisms that raised doubts as to whether his subjective reporting was genuine. When taxed by Kirwans with the discrepancy between the joint report that she had signed and her earlier assessments the respondent gave what Blake J rightly described as an unhappy picture of how the joint statement came to be signed, summarised as follows: She had not seen the reports of the opposing expert at the time i) of the telephone conference; ii) The joint statement, as drafted by the opposing expert, did not reflect what she had agreed in the telephone conversation, but she had felt under some pressure in agreeing it; iii) Her true view was that the claimant had been evasive rather than deceptive; iv) now resolved; v) She was happy for the claimants then solicitors to amend the joint statement. It was her view that the claimant did suffer PTSD which was Kirwans sought permission to change their psychiatric expert, but the district judge would not permit this. It is the appellants case that Kirwans were then constrained to settle his claim for significantly less than the settlement that would have been achieved had not the respondent signed the joint statement in the terms in which she did. The current state of the law The immunity of expert witnesses, as propounded by the Court of Appeal in Stanton v Callaghan, has a long history. This dates back over 400 years see Cutler v Dixon (1585) 4 Co Rep 14b; 76 ER 886. Thus the immunity was established long before the development of the modern law of negligence and, in particular, the recognition of the possibility of liability for negligent misstatement. It also dates back to an era long before it became common for forensic experts to offer their services under contracts for reward. The immunity has its origin in a reaction to an actual or perceived tendency on the part of disgruntled litigants, or defendants in criminal proceedings, to bring proceedings for libel or slander against those who had given evidence against them. Thus the immunity originally took the form of absolute privilege against a claim for defamation and it extended to all who took part in legal proceedings. In Dawkins v Lord Rokeby (1873) LR 8 QB 255, 263 Kelly CB stated: The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law. This privilege was extended, in the form of immunity from suit, to other forms of action in tort. In Hargreaves v Bretherton [1959] 1 QB 45 a man who had been convicted of fraud sought to bring a civil suit for perjury. In striking out the claim as disclosing no cause of action Lord Goddard CJ cited the statement of Lord Mansfield in R v Skinner (1772) Lofft 55 that neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office. He commented: That is a perfectly clear statement by one of the greatest common lawyers that ever lived, that for words spoken by a witness in office, which means, of course, for this purpose in giving evidence, he cannot be put to answer either civilly or criminally. In Marrinan v Vibart [1963] 1 QB 528 an attempt to circumvent the immunity by framing a claim in conspiracy to defame was roundly rejected by the Court of Appeal. The typical situation where the immunity was invoked was where a witness or party had given evidence hostile to the plaintiff. A similar protection was afforded to counsel in relation to defamatory allegations made against a party, or indeed anyone else, in the course of his conduct of legal proceedings. This immunity overlapped with a wider immunity enjoyed by a barrister from a claim by his own client for failure to exercise reasonable skill and care in the conduct of litigation on behalf of the client. That immunity was unsuccessfully challenged in Rondel v Worsley [1969] 1 AC 191. In Hall v Simons [2001] 1 AC 615 the House of Lords abolished it on the ground that it could no longer be justified. The barrister is, however, still protected by absolute privilege from a claim in defamation in relation to statements made in the course of the conduct of legal proceedings see Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120, 142, per Lord Hobhouse. I now propose to consider the authorities in greater detail. My particular objects in doing so are first to identify the reasons for the immunity from suit, secondly to examine the circumstances in which it was accepted that this immunity extended to expert witnesses and thirdly to identify the reasoning that was applied first in holding that this immunity extended to barristers and then in holding that it did not protect them from actions for breach of duty of care. In the light of the authorities I shall then turn to consider whether the immunity can be justified. The authorities The reasons for the immunity In Cutler v Dixon the reason given for rejecting the claim was that if actions should be permitted in such cases, those who have just cause for complaint, would not dare to complain for fear of infinite vexation. The continuous theme that runs through the cases is, in modern parlance, the chilling effect that the risk of claims arising out of conduct in relation to legal proceedings would have. It would make claimants reluctant to resort to litigation. It would make witnesses reluctant to testify. If they did testify, it would make them reluctant to do so freely and frankly. The cases emphasise that the object of the immunity is not to protect those whose conduct is open to criticism, but those who would be subject to unjustified and vexatious claims by disgruntled litigants. There is no need to cite the many early authorities that support these propositions, for the reasons for the immunity were considered relatively recently by the House of Lords in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435. The issue in that case was whether witness immunity extended to protect police officers who were alleged to have fabricated evidence, as opposed to having given false evidence, from claims of conspiracy to injure and misfeasance in public office. The plaintiffs had been indicted for serious offences, but their trial had been permanently stayed on the grounds of abuse of process on the part of the police. Their Lordships identified the following justifications for witness immunity: i) To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims: per Lord Hope of Craighead at p 446 and Lord Hutton at p 464; ii) To encourage honest and well meaning persons to assist justice; in the interest of establishing the truth and to secure that justice may be done: per Lord Hope at p 447 and Lord Clyde at p 460; iii) To secure that the witness will speak freely and fearlessly: per Lord Clyde at p 461. A further justification was identified by Lord Hope at p 446, namely to avoid a multiplicity of actions in which the value or truth of the evidence of a witness would be tried all over again. This justification had been identified by Lord Wilberforce in Roy v Prior [1971] AC 470, 480. In Darker Lord Hope observed that this justification only applied to evidence given in court, so that it was not relevant to that appeal. He might have added that it only applied where the proceedings had culminated in a decision. In his judgment in this case, Lord Hope suggests that this justification is one that was relevant to barrister immunity, but which is not relevant to witness immunity. I do not wholly agree. A claim against a witness might well involve an assertion that, but for the false evidence, the trial would have had a different outcome, a matter with obvious implications for the measure of damages. I agree, however, that this was not one of the original justifications, nor the most cogent justification, for the general immunity. The extension of the immunity to expert witnesses A significant distinction between an expert witness and a witness of fact is that the former will have chosen to provide his services and will voluntarily have undertaken duties to his client for reward under contract whereas the latter will have no such motive for giving evidence. The question was raised, but not explored in depth, of whether an expert is normally in direct contractual relationship with his client, or whether his contract is with the solicitor who engages him on behalf of the client. I do not think that this is significant. In either event there is a marked difference between holding the expert witness immune from liability for breach of the duty that he has undertaken to the claimant and granting immunity to a witness of fact from liability against a claim for defamation, or some other tortious claim, where the witness may not have volunteered to give evidence and where he owes no duty to the claimant. It is notable that, before the present case, no one appears to have suggested that this difference called into question whether witness immunity should extend to protect the expert witness against a claim by his own client. The Scottish case of Watson v MEwan [1905] AC 480 was a case where a claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. It is a case of unusual facts. The appellant was a doctor of medicine who had been retained by the respondent (the wife) in respect of proposed proceedings against her husband for separation and aliment. He was subsequently retained by the husband in the same proceedings. In preparing his witness statement he included some very damaging allegations based on matters that he had learned when acting for the wife, which included allegations of taking morphine and planning to procure an abortion. He subsequently gave oral evidence of these matters in the court proceedings. The wife brought an action against him for breach of confidence and for slander, relying on both what was said to the husbands lawyers and what was said in court. The head note to the report of the decision in the House of Lords suggests that the claim for breach of confidence did not proceed, and that the relevant issues that came before the House of Lords were whether the appellant was immune from a claim for slander in respect of what he said in court and, more pertinently, whether this immunity extended to what he had said when giving his witness statement (the precognition). I am however grateful to Lord Hope for his clarification of the nature of this rather confusing litigation. The House of Lords held that the appellant was immune. Giving the leading speech the Earl of Halsbury LC said, at pp 488 489: I do not care whether he is what is called a volunteer or not; if he is a person engaged in the administration of justice, on whichever side he is called his duty is to tell the truth and the whole truth. If he tells the truth and the whole truth, it matters not on whose behalf he is called as a witness; in respect of what he swears as a witness he is protected that cannot be denied and when he is being examined for the purpose of being a witness he is bound to tell the whole truth according to his views, otherwise the precognition, the examination to ascertain what he will prove in the witness box, would be worth nothing. This decision lends some support for extending witness immunity to experts, but it is right to observe that the focus of the House of Lords appears to have been the claim for slander and the case was not concerned with the duty of care that, under the modern law, is owed by an expert to his client, as to which see para 49 below. Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 involved a claim against forensic scientists in negligence. The scientists had provided post mortem reports to the police that had led to the plaintiff being prosecuted for the murder of her small son. At trial the prosecution offered no evidence so that she was acquitted. She alleged that the defendants had been negligent in the conduct of the post mortem. Drake J held that the defendants were protected by witness immunity. He held that immunity given to a witness extended to cover statements he made prior to the issue of a writ or the commencement of a prosecution, provided that the statement was made for the purpose of a possible action or prosecution and at a time when the possible action or prosecution was being considered. There is no reported case where immunity was invoked against a claim for breach of a duty of care brought against a professional expert witness by his client before Palmer v Durnford Ford [1992] QB 483. In that case the plaintiffs had pursued a disastrous claim against both the supplier and a repairer of a lorry tractor unit. They subsequently sued an engineering expert on the ground that his incompetent report had led them to advance claims on a basis that was invalid, and their solicitors for negligence in engaging an incompetent expert. The expert persuaded the district judge to strike out the claim against him on the ground that he was immune from suit. On appeal the plaintiff did not challenge the proposition that the immunity that was enjoyed by witnesses in general protected a paid expert against a claim by his own client. The issue was the extent of that immunity. Mr Simon Tuckey QC, sitting as a deputy High Court judge, applied by analogy the decision of the House of Lords in relation to the advocates immunity from suit in Saif Ali v Sydney Mitchell & Co [1980] AC 198 a decision that I shall consider in due course. He held, at p 488, that immunity would only extend to what could fairly be said to be work which was preliminary to giving evidence in court, judged perhaps by the principal purpose for which the work was done. Work done principally for the purpose of advising the client was not covered. Until the present case I am not aware that the decision in Palmer v Durnford Ford has been questioned. It was referred to, with approval, in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. One of the issues raised in that case was whether witness immunity protected a psychiatrist from liability in negligence to a child in respect of advice as to whether the likelihood of child abuse rendered it desirable for a child to be removed from her home. The argument was that if the psychiatrists views were to lead to child care proceedings, the psychiatrist would have to present those views in court. In the Court of Appeal at p 661 Sir Thomas Bingham MR dismissed this argument. He observed that witness immunity had been treated as analogous to immunity accorded to those in the conduct of proceedings. If the immunity were as wide as that claimed, a barrister or solicitor advising a client on a factual question with a view to proceedings would be immune from an action for negligence. Such a result was inconsistent with authority. Mr Simon Tuckey had reached a correct conclusion in Palmer v Durnford Ford. In the House of Lords Lord Browne Wilkinson disagreed at p 755, inasmuch as he held that the views expressed by the psychiatrist were protected by witness immunity. He found the reasoning of Drake J in Evans v London Hospital compelling, at least in relation to criminal proceedings. He expressed no view in relation to ordinary civil proceedings and said that he intended to cast no doubt on Mr Simon Tuckeys decision in Palmer v Durnford Ford. Stanton v Callaghan [2000] QB 75 is the leading case on immunity conferred in respect of a claim brought by a litigant against his own expert witness. The case has features in common with those of the present case. The defendant was a structural engineer, retained by the plaintiffs to assist in a claim against insurers in relation to the costs of dealing with subsidence of the plaintiffs house. He initially advised that total underpinning was required at a cost of some 77,000. Subsequently, in the course of preparing a joint report with the insurers expert witness, the latter persuaded him to agree that infilling with polystyrene, at a cost of only some 21,000, would be a satisfactory remedy. The case was settled on that basis, but the plaintiffs then brought an action claiming that their experts change of advice had been negligent. The master refused an application to strike out the claim and the judge upheld him, but the Court of Appeal reversed the decision. After a review of authority, including lengthy citation from Palmer v Durnford Ford, Chadwick LJ summarised their effect as follows, at p 100: (i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a partys claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed. What, as it seems to me, has not been decided by any authority binding in this court is whether an expert is immune from suit by the party who has retained him in respect of the contents of a report which he prepares for the purpose of exchange prior to trial say, to comply with directions given under RSC, Ord 38, r 37 in circumstances where he does not, in the event, give evidence at the trial; either because the trial does not take place or because he is not called as a witness. Chadwick LJs conclusion appears at pp 101 102: In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice. Otton LJ agreed. He drew an analogy between the position of an expert witness and the position of an advocate, and applied the reasoning of the House of Lords in relation to the position of barristers in Rondel v Worsley [1969] 1 AC 191, to which I shall shortly refer. Each had to be given full opportunity to discharge their duties to the court. Otton LJs conclusion on the facts of the case before him were as follows: On any basis the defendant when attending the meeting with his opposite number enjoyed the immunity. It is true that he did not do so pursuant to RSC, Ord 38, r 38 but the purpose of the meeting was to identify those parts of the evidence and the others opinion which they could agree and those which they could not. It was in the public interest to do so. The duty to the court must override the fear of suit arising out of a departure from a previously held position. The expert must be able to resile fearlessly and with dignity. In the instant case both experts resiled from more extreme positions. In theory, at least, the defendants could have sued their expert for placing them in a more adverse position. This is the extent of the relatively sparse authority in this jurisdiction which deals directly with the immunity of an expert witness to suit by his own client. Before considering whether this Court should allow the law to stand where it is I turn to consider what lessons are to be learned from the position of advocates, for the courts have both compared and contrasted the position of advocates with the position of expert witnesses. The position of barristers It had long been thought by many that barristers were immune from liability in negligence because they did not enter into contracts with their clients. They could not sue for their fees and thus they owed their clients no duty of care. This reasoning was thrown into question by the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The immunity of barristers was challenged in Rondel v Worsley [1969] 1 AC 191. No case could have been better designed to illustrate the dangers of being exposed to vexatious litigation. The defendant had accepted a dock brief for a man who was rightly convicted and sentenced to 18 months imprisonment. His application for permission to appeal included complaints against his counsel. It was refused. He then commenced proceedings for negligence. It was at all stages found that his claim was hopeless. But the issue of principle of whether an action for negligence could be brought against a barrister was pursued to the House of Lords. Their Lordships unanimously held that it could not. Barristers were immune from liability in negligence. This immunity did not stem from a barristers inability to sue for his fees. It was to protect him from the risk of being sued for doing no more than his duty to the court. This would sometimes conflict with what appeared to be the personal interests of the client: as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his clients wishes or with what the client thinks are his personal interests. per Lord Reid at p 227. This rendered counsel particularly susceptible to vexatious suits and immunity was necessary to protect against this. Without this immunity there would be a pressure on the advocate to subordinate his duty to the court to his duty to the client. This would lead him into undesirable prolixity per Lord Reid at p 229, Lord Morris of Borth y Gest at p 251, Lord Pearce at pp 256 and 272, and Lord Upjohn at p 284. Some of their Lordships were also concerned with the prospect of repeated litigation raising the same issues having failed to prove by appeal that he was wrongly convicted, the defendant would seek to establish this by a claim against his counsel. This would lead to a trial upon a trial, speculation upon speculation, an unseemly excrescence upon the legal system per Lord Morris at pp 249 250. Lord Reid, Lord Morris and Lord Upjohn expressed the view that public policy did not require that a barrister should be immune from negligence in relation to matters unconnected with cases in court. Lord Reid observed at p 229 that immunity was not the only way that the law protected counsel. They also shared with the judge and witnesses the absolute privilege with regard to what was said by them in court. At p 252 Lord Morris compared the immunity of the barrister with that accorded to witnesses in respect of the evidence given by them in court, an immunity which also attached to the parties and to the judge, albeit that the relationship between an advocate and the client differed from the relationship between the client and an adverse witness p 253. Lord Pearce at pp 268 269 also drew an analogy between the position of advocates and the position of witnesses. He remarked that the reasons underlying the immunity of witnesses were first that there might be a series of retrials and secondly that an honest witness might be deflected by fear of the consequences. He asked at p 270 whether counsel alone of the five ingredients of a trial parties, witnesses, judge, jurors and advocate should be the only one to be liable to his client in damages. Lord Upjohn at p 283 remarked that it was because of counsels duty to the court in the public interest that immunity from defamation was granted, as it was to the judge and to witnesses. This immunity was just as necessary in respect of his general conduct of the case. It is noteworthy that, in justifying the immunity from suit enjoyed by counsel, their Lordships compared the position of counsel with that of the others who took part in the trial process, including witnesses. In Saif Ali v Sydney Mitchell & Co [1980] AC 198 the issue was not whether barristers should have immunity from suit, but the scope of that immunity. The plaintiff brought an action against his solicitors for failure to sue the correct defendant in relation to a road traffic accident. The solicitors joined the barrister who had advised them. The issue was whether the barristers immunity extended to his advice on whom to sue. The House of Lords, Lord Keith of Kinkel dissenting, held that it did not. Lord Wilberforce at p 214 distinguished this immunity from the privilege that attached to court proceedings, which protected equally judge, counsel, witnesses, jurors and parties, observing that this had nothing to do with a barristers immunity from suit. The following test of immunity, laid down by McCarthy P in the New Zealand Court of Appeal in Rees v Sinclair [1974] 1 NZLR 180, 187 was approved: the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. Lord Diplock commented at p 218 that the barristers immunity from liability for negligence in the conduct of his professional work granted the Bar a privileged status which the common law did not accord to any other profession or skilled craft. He held that this immunity was justified by two considerations. The first was that the barristers immunity for what he said and did in court was part of the general immunity from civil liability which attached to all persons in respect of their participation in proceedings before a court of justice; judges, court officials, witnesses, parties, counsel and solicitors alike p 222. The second was the undesirability of re trials of the same issues. Lord Salmon at p 230 remarked that public policy required the barrister to have the same immunity as the judge, juryman or witness for anything he said or did in court, but not for failing to join the right party. Lord Russell of Killowen, who also dissented, at p 233, on the other hand, said that the barristers immunity was so that he could perform his public duty in relation to the conduct of litigation without worrying about the possibility of a claim for negligence. He did not consider that this immunity was connected with a quite different immunity of judges, witnesses and jurors. It is not easy to trace a common thread in these judgments. The majority, however, come close to equating the position of the barrister with that of the others who take part in proceedings in court. The majority also held that, when a solicitor was acting as an advocate, he enjoyed the same immunity as a barrister. In Hall v Simons the House of Lords swept away the advocates immunity from liability in negligence, in court and out, albeit not their absolute privilege from claims for defamation. Counsel for the plaintiffs accepted that expert witnesses enjoyed immunity and did not seek to challenge this. Rather they sought to distinguish expert witnesses from advocates on the ground that the former owed no duties to their clients once they were in the witness box. Their sole duty was then to the court p 671. Lord Steyn does not seem to have accepted this argument. At p 679 he referred to the analogy of the immunity of those involved in court proceedings. He then referred to an argument in Cane, Tort Law and Economic Interests, 2nd ed (1996), p 237 that urged the case for removing immunity from paid expert witnesses. He was, however, persuaded by an argument that there was little connection between immunity from liability for things said in court and immunity from liability for negligent acts. Lord Hoffmann accepted counsels argument. He said at p 698: Mr Scott invited your Lordships to apply by analogy the decision of the Court of Appeal in Stanton v Callaghan [2000] QB 75, in which it was held that an expert witness could not be sued for agreeing to a joint experts statement in terms which the client thought detrimental to his interests. He said that this was an example of a general immunity for acts done in the course of litigation. But that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. There seems to me no analogy with the position of a lawyer who owes a duty of care to his client. Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client. I shall shortly consider the extent to which there is a valid distinction between advocates and expert witnesses in the present context. It suffices to note that in Hall v Simons the House of Lords abolished immunity from liability in negligence in the case of the former without questioning the immunity of the latter. Discussion I propose to consider the following issues in relation to expert witnesses: i) What are the purposes of the immunity? ii) What is the scope of the immunity? iii) Has the immunity been eroded? iv) What are the effects of the immunity? v) Can expert witnesses be compared to advocates? vi) Is the immunity justified? vii) Should the immunity be abolished? What are the purposes of the immunity? Mr Lawrence QC for the respondent did not seek to advance the danger of a multiplicity of proceedings in support of witness immunity. He accepted that that argument had been more cogent as a justification for the immunity from suit that had been accorded to advocates, and yet that argument had not prevailed in Hall v Simons. Rather, Mr Lawrence invoked the chilling factor that potential liability in negligence would introduce in respect of expert evidence. This, he submitted, would operate in two ways. First it would make expert witnesses more reluctant to provide their services at all. He drew attention to concerns expressed by Thorpe LJ in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, paras 225 249, that, in relation to family justice, the demand for experts exceeded supply and that this was a field which was very sensitive to increasing or newly emerging disincentives. This was a theme that Wall LJ had underlined extra judicially when delivering a paper on the use of experts in family cases at the annual Bond Solon expert witness conference on 6 November 2009. Mr Lawrence placed more emphasis on the other aspect of the chilling factor. This was the reluctance that an expert witness would have to give evidence that was contrary to his clients interest if there was a risk that this might lead his client to sue him. This risk, he submitted, had become more significant since Lord Woolf, and the provisions of the CPR which gave effect to his recommendations, had emphasised the paramount importance of the duty of an expert to give frank and objective advice to the court. It was important that experts should have the reassurance that, if they complied with this obligation to the possible disadvantage of their clients, they would not be at risk of being sued for failing to have regard to their clients best interests. I believe that Mr Lawrence has accurately identified the primary case for conferring immunity from liability in negligence on expert witnesses. As I explained in para 17 above, however, I would not wholly discount the argument that it is undesirable that one court, other than an appellate court, should be required to pass judgment on the correctness of the decision of another court, which is a possible consequence of permitting claims for negligence against expert witnesses. What is the scope of the immunity? The Court suggested to Mr Lawrence that the requirement identified by Otton LJ in Stanton v Callaghan that an expert must be able to resile fearlessly and with dignity from a more extreme position taken in an earlier advice could present a paradox. The expert might be reluctant to do this through fear of conceding that his earlier advice had been erroneous. In that event he needed protection, not in respect of his revised view, but in respect of his earlier advice. Yet, on the approach in Palmer v Durnford Ford, the earlier advice might not be covered by the immunity. Mr Lawrences response to this was that any advice given in possible anticipation of litigation should be covered by the immunity. This would bring within the scope of the immunity a wider class of expert advice than those embraced by the test in Palmer v Durnford Ford, indeed any expert advice where there was a possibility of litigation. Mr Lawrences submissions lend support to a point made in opposition to the immunity by Mr Ter Haar. This is that it is difficult to draw the line that confines the immunity. The border is fuzzy. It is clear, however, that if the immunity is to be effective in removing inhibitions on what the expert witness is prepared to say at the trial it must protect him in relation to his expression of views before the trial. Has the immunity been eroded? Mr Ter Haar submitted that the case for conferring immunity on expert witnesses has weakened because, in two respects, the immunity of expert witnesses has been eroded. In Meadow v General Medical Council [2007] QB 462 the Court of Appeal held that expert witnesses had no immunity against disciplinary proceedings before professional tribunals where fitness to practice was in issue. In Phillips v Symes (No 2) [2004] EWHC 2330 (Ch), [2005] 1 WLR 2043 Peter Smith J held that expert witnesses were not immune from being held liable to wasted costs orders. Mr Lawrence accepted the validity of this argument to the extent of submitting that Phillips v Symes (No 2) had been wrongly decided. I do not consider that the susceptibility of expert witnesses to disciplinary proceedings or to wasted cost orders weakens the case for immunity from civil suit, in so far as this case exists. The principal argument advanced for immunity from civil suit is that the risk of being sued will deter the expert witness from giving full and frank evidence in accordance with his duty to the court when this conflicts with the interests of his client. In so far as a witness may be tempted to trim his sails to suit his client, I would expect the risk of disciplinary proceedings or of a wasted costs order to be a deterrent. The argument advanced in support of immunity from suit by the client does not extend to immunity from disciplinary proceedings or wasted costs orders. What are the effects of the immunity? It is common ground that if the immunity is to be effective it must apply to views expressed not only in court, but in contemplation of, or at least preparation for, possible court proceedings. The vast proportion of civil claims settle before they get to court. For this reason alone it will be in only a small minority of cases that views expressed by an expert will affect the client because of their impact on a hearing in court. In the vast majority of cases those views will impact, not on a judgment of the court, but on the clients decision whether or not to proceed with an action or on the terms on which he agrees to settle the dispute. It is no coincidence that both in the present case and in Palmer v Durnford Ford the claim has related to the effect of the experts opinion on the terms of a settlement. Thus the effect of the immunity is to preclude the client from suing for breach of duty where the experts negligence is alleged to have adversely affected such a decision. The question is whether this is necessary in order to ensure that his objectivity is not affected in the minority of cases that do result in court proceedings. Can expert witnesses be compared to advocates? In Hall v Simons at p 698 Lord Hoffmann, when comparing the position of an expert witness to that of an advocate, said that a witness owes no duty of care in respect of the evidence that he gives to the court. His only duty is to tell the truth. That statement may be true of a witness of fact, but it is not true of an expert witness. Lord Hoffmann was wrong to distinguish between the expert witness and the advocate on the basis that the latter is the only person who has undertaken a duty of care to the client. In some circumstances the difference between an immunity from suit and an absence of legal duty can be readily appreciated. Diplomatic immunity, which can be waived, is an example. In this case the distinction is more elusive. There was a time when it might have been possible to argue that there was a difference between the duty owed by an expert witness to the client who retained him and a conflicting, and overriding, public duty owed by the expert when giving evidence in court; that the former obliged the expert to put forward the best case for his client whereas the latter involved a duty to be candid, even at the expense of his client. The existence of such a difference is implicit in the provision of CPR 35.3 which states that it is the duty of experts to help the court with matters within their expertise and that this duty overrides any obligation to the person from whom the experts have received their instructions or by whom they are paid. Such a distinction lends force to the argument that, once the expert is providing evidence to the court, or preparing to do so, he is no longer bound by a duty to his client and thus cannot be held liable for breach of such duty. In Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818 Laddie J, at p 841, quoted from an article, The Expert Witness: Partisan with a Conscience, in the August 1990 Journal of the Chartered Institute of Arbitrators by a distinguished expert who suggested that it was appropriate for an expert to act as a hired gun unless and until he found himself in court where the earlier pragmatic flexibility is brought under a sharp curb, whether of conscience, or fear of perjury, or fear of losing professional credibility. It is no longer enough for the expert like the virtuous youth in the Mikado to tell the truth whenever he finds it pays: shades of moral and other constraints begin to close up on him. Laddie J was rightly critical of the approach of this expert. There is no longer any scope, if indeed there ever was, for contrasting the duty owed by an expert to his client with a different duty to the court, which replaces the former, once the witness gets into court. In response to Lord Woolfs recommendations on access to justice the CPR now spell out in detail the duties to which expert witnesses are subject including, where so directed, a duty to meet and, where possible, reach agreement with the expert on the other side. At the end of every experts report the writer has to state that he understands and has complied with his duty to the court. Where an expert witness is retained, it is likely to be, as it was in the present case, on terms that the expert will perform the functions specified in the CPR. The expert agrees with his client that he will perform the duties that he owes to the court. Thus there is no conflict between the duty that the expert owes to his client and the duty that he owes to the court. Furthermore, a term is implied into the contract under section 13 of the Supply of Goods and Services Act 1982, that the expert will exercise reasonable skill and care in carrying out the contractual services. Thus the expert witness has this in common with the advocate. Each undertakes a duty to provide services to the client. In each case those services include a paramount duty to the court and the public, which may require the advocate or the witness to act in a way which does not advance the clients case. The advocate must disclose to the court authorities that are unfavourable to his client. The expert witness must give his evidence honestly, even if this involves concessions that are contrary to his clients interests. The expert witness has far more in common with the advocate than he does with the witness of fact. Is the immunity justified? In Darker Lord Clyde remarked, at pp 456 457: since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, and should not readily be extended. It should only be allowed where it is necessary to do so. With this principle in mind, I would adopt the approach advocated by Lord Reid in Rondel v Worsley at p 228, when considering the immunity from suit enjoyed by advocates: the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable. It would not be right to start with a presumption that because the immunity exists it should be maintained unless it is shown to be unjustified. The onus lies fairly and squarely on the respondent to justify the immunity behind which she seeks to shelter. I turn to consider whether she can do so. I shall consider the various justifications advanced for the immunity that I have identified earlier in this judgment. Reluctance to testify Is Mr Lawrence right to submit that, if expert witnesses are liable to be sued for breach of duty, they will be discouraged from providing their services at all? I can see no justification for this assumption. All who provide professional services which involve a duty of care are at risk of being sued for breach of that duty. They customarily insure against that risk. In some circumstances the risk of suit and the cost of insurance may be so high that this is a discouragement to provision of those services. I understand that, in some parts of the world, this is true of the services of obstetricians. In Meadow Thorpe LJ drew attention to the shortage of medical experts who were prepared to provide forensic services in child care cases. He said, at para 227, of the family justice system: Here most of the required experts are either medically qualified or otherwise qualified in the mental health professions. The majority will be employed under NHS consultant contracts. By contrast to the other justice systems this is a market in which demand exceeds supply. It is thus very sensitive to increasing or newly emerging disincentives. This factor is compounded by a paucity of incentives. The fee for the work will often be paid to the trust employer. The employer may be reluctant to release the consultant from other duties. Keeping up with the demands of the courts timetable may involve evening or weekend work. Thorpe LJ was describing the position as it then was, notwithstanding that expert witnesses were immune from suit in relation to their evidence. It does not follow that removing this immunity would constitute a further significant disincentive to their provision of forensic services. Why should the risk of being sued in relation to forensic services constitute a greater disincentive to the provision of such services than does the risk of being sued in relation to any other form of professional service? Furthermore, as Thorpe LJ remarked, the supply of expert witnesses in other fields exceeds demand. Mr Ter Haar referred the Court to a survey carried out at the Bond Solon Annual Expert Witness Conference in November 2010. 106 experts were asked whether they would continue to act as expert witnesses if expert immunity from suit were substantially reduced. 92 answered yes and 14 no. I do not consider that much weight can be attached to a survey of this type, but it does not suggest that immunity from suit for negligence is essential to secure an adequate supply of forensic experts. The case that immunity is necessary to prevent a chilling effect on the supply of expert witnesses is not made out. Is immunity necessary to ensure that expert witnesses give full and frank evidence to the court? The principal justification for immunity that Mr Lawrence urged was that this was necessary to ensure that the expert performed his duty to the court. This duty required him, whether when attempting to reach agreement with the expert on the other side, or when giving evidence to the court, to give his honest opinion, even if this proved adverse to the case of his own client. Mr Lawrence submitted that the expert would have some apprehension about taking such a course and that immunity from suit was necessary to allay this apprehension. Mr Lawrence could produce no empirical evidence to support this thesis, nor could Mr Ter Haar produce any empirical evidence to disprove it. Research into the position in other common law jurisdictions was inconclusive. As expert witnesses have, to date, had the benefit of immunity, how they will behave if that immunity is removed must be a matter of conjecture or, more accurately, reasoning. But if reasoning is applied, I do not find that it supports Mr Lawrences thesis. An experts initial advice is likely to be for the benefit of his client alone. It is on the basis of that advice that the client is likely to decide whether to proceed with his claim, or the terms on which to settle it. The question then arises of the experts attitude if he subsequently forms the view, or is persuaded by the witness on the other side, that his initial advice was over optimistic, or that there is some weakness in his clients case which he had not appreciated. His duty to the court is frankly to concede his change of view. The witness of integrity will do so. I can readily appreciate the possibility that some experts may not have that integrity. They will be reluctant to admit to the weakness in their clients case. They may be reluctant because of loyalty to the client and his team, or because of a disinclination to admit to having erred in the initial opinion. I question, however, whether their reluctance will be because of a fear of being sued at least a fear of being sued for the opinion given to the court. An expert will be well aware of his duty to the court and that if he frankly accepts that he has changed his view it will be apparent that he is performing that duty. I do not see why he should be concerned that this will result in his being sued for breach of duty. It is paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty. There is here, I believe, a lesson to be learnt from the position of barristers. It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court. Yet removal of their immunity has not in my experience resulted in any diminution of the advocates readiness to perform that duty. It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty. Will the diligent expert witness be harassed by vexatious claims for breach of duty? There is an overlap between this question and the last. The rational expert witness who has performed his duty is unlikely to fear being sued by the rational client. But unsuccessful litigants do not always behave rationally. I can appreciate the apprehension that, if expert witnesses are not immune, they may find themselves the subject of vexatious claims. But again I question the extent to which this apprehension is realistic. It is easy enough for the unsuccessful litigant to allege, if permitted, that a witness of fact who has given evidence against him was guilty of defamatory mendacity. It is far less easy for a lay litigant to mount a credible case that his expert witness has been negligent. The present case is unusual in that, on the agreed facts, the respondent has admitted to putting her signature to a joint report that did not express her views. There is nothing vexatious about the present claim. Where, however, a litigant is disaffected because a diligent expert has made concessions that have damaged his case, how is he to get a claim against that expert off the ground? It will not be viable without the support of another expert. Is the rare litigant who has the resources to fund such a claim going to throw money away on proceedings that he will be advised are without merit? The litigant without resources will be unlikely to succeed in persuading lawyers to act on a conditional fee basis. A litigant in person who seeks to bring such a claim without professional support will be unable to plead a coherent case and will be susceptible to a strike out application. For these reasons I doubt whether removal of expert witness immunity will lead to a proliferation of vexatious claims. I am not aware that since Hall v Simons barristers have experienced a flood of such claims from disappointed litigants. Will there be a risk of a multiplicity of suits? For the reasons that I have already given I do not believe that there will. I have, however, been considering thus far the position of expert witnesses in civil cases. I believe that my conclusions hold good in the case of the duty owed by an expert witness to the client who retains him in a criminal trial. I concede, however, that the risk of vexatious claims from those convicted of criminal offences may be greater. Such claims will, however, be struck out as an abuse of process unless the convicted client first succeeds in getting his conviction overturned on appeal see Hunter v Chief Constable of the West Midlands Police [1982] AC 529. For these reason I conclude that no justification has been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they give in court or for the views they express in anticipation of court proceedings. Should the immunity be abolished? It follows that I consider that the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. I emphasise that this conclusion does not extend to the absolute privilege that they enjoy in respect of claims in defamation. Accordingly, I would allow this appeal. LORD BROWN Being far from sure that I have anything of value to add to the judgments of the majority in favour of allowing this appeal, I shall state my central views on the matter very briefly indeed. Expert witnesses are to be regarded as sui generis in the present context. There are profound differences between them and, on the one hand, witnesses of fact; on the other hand, advocates. (For the purposes of this brief judgment I mean by an expert witness a witness selected, instructed and paid by a party to litigation for his expertise and permitted on that account to give opinion evidence in the dispute. I am not referring, for example, to a treating doctor or forensic pathologist, either of whom may be called to give factual evidence in the case as well as being asked for their professional opinions upon it without their having been initially retained by either party to the dispute.) It has long been established that witnesses of fact enjoy complete immunity immunity, that is, from any form of civil action in respect of evidence given (or foreshadowed in a statement made) in the course of proceedings. It is no less clearly established, following Arthur J S Hall & Co v Simons [2002] 1 AC 615 that advocates have no immunity from suit in respect of any aspect of their conduct of proceedings (save, of course, from defamation claims and the like pursuant to the absolute privilege attaching to court proceedings). The absolute immunity rule which applies to witnesses of fact, as noted by Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208: is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. That aside, witnesses of fact are unlikely to owe the party calling them any duty of care whether in contract or in tort. In stark contrast, not only do expert witnesses clearly owe the party retaining them a contractual duty to exercise reasonable skill and care but, I am persuaded, the gains to be derived from denying them immunity from suit for breach of that duty substantially exceed whatever loss might be thought likely to result from this. These pros and cons have been fully explored in the judgments of other members of the court. Suffice to say that in my opinion the most likely broad consequence of denying expert witnesses the immunity accorded to them (only comparatively recently) by the decisions in Palmer v Durnford Ford [1992] QB 483 and Stanton v Callaghan [2000] QB 75 will be a sharpened awareness of the risks of pitching their initial views of the merits of their clients case too high or too inflexibly lest these views come to expose and embarrass them at a later date. I for one would welcome this as a healthy development in the approach of expert witnesses to their ultimate task (their sole rationale) of assisting the court to a fair outcome of the dispute (or, indeed, assisting the parties to a reasonable pre trial settlement). The other signal advantage of denying immunity to expert witnesses is, of course, that in the no doubt rare case where the witness behaves in an egregious manner such as is alleged in the instant case or, indeed, otherwise causes his client loss by adopting or adhering to an opinion outside the permissible range of reasonable expert opinions, the wronged client will enjoy, rather than have denied to him by rule of law, his proper remedy. Such cases are to my mind likely to be highly exceptional and for my part I would urge the courts to be alert to protect expert witnesses against specious claims by disappointed litigants not to mention to stamp vigorously upon any sort of attempt to pressurise experts to adopt or alter opinions other than those genuinely held. Overall, I am satisfied that the balance of advantage here lies clearly in favour of allowing this appeal. LORD COLLINS I agree that the appeal should be allowed. This appeal is concerned only with the liability of the so called friendly expert to be sued by the client on whose behalf the expert was retained. The facts raise directly only liability to be sued for out of court statements, but any immunity in relation to such statements is a necessary concomitant of the immunity for things said in court, and the same principles must apply equally to each. The early history of witness immunity is largely concerned with immunity from suit for defamation: see, e.g. Dawkins v Lord Rokeby (1873) LR 8 QB 255. It was of course extended to other causes of action, but absolute privilege of witnesses and other persons in the judicial process from defamation is at its core. The basis of the present decision is that where a person has suffered a wrong that person should have a remedy unless there is a sufficiently strong public policy in maintaining an immunity. The policy behind immunity from suit for defamation is that to allow the possibility of such an action would create a chilling effect, inhibit frankness and bring the trial process into disrepute. Thus there is nothing in the present decision which would enable a client to sue his handwriting expert for slander because in the witness box he changed his mind and expressed the view that the clients document was a forgery. Nor of course is there anything in the present decision which affects the position of the adverse expert. It is not sufficient to say that the adverse expert presents no problem because the expert owes no duty to the client on the other side. There are wider considerations of policy which ought to prevent adverse experts from being the target of disappointed litigants, even if the scope of duty in tort were to be extended in the future. It is true, as McHugh J said in DOrta Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1, para 100, that except for the purpose of classification it may not matter whether the lack of legal liability stems from characterising it as an immunity or as an absence of duty of care. But it would be preferable to treat it as an immunity to emphasise the strong element of policy involved. Lord Phillips has referred in detail to the developments in the case law in England. Because this appeal raises questions of policy it is more than usually helpful to look at developments in other countries, and in particular at the rich jurisprudence which has developed in the United States in the last 20 years or so. The tendency in the Commonwealth in recent years has been to uphold witness immunity for experts, although it has not been the subject of full discussion at higher appellate levels. General witness immunity has been re affirmed by the High Court of Australia in DOrta Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1, para 39; by the Supreme Court of New Zealand in Lai v Chamberlains [2007] 2 NZLR 7; and by the Ontario Court of Appeal in Reynolds v Kingston (Police Services Board) [2007] ONCA 166. The immunity has been re affirmed in relation to expert witnesses in Australia in Sovereign Motor Inns Pty Ltd v Howarth Asia Pacific Pty Ltd [2003] NSWSC 1120; James v Medical Board of South Australia (2006) 95 SASR 445 (South Australia); Commonwealth v Griffiths (2007) 245 ALR 172 (NSW C.A) and in Canada in Carnahan v Coates (1990) 71 DLR (4th) 464; Varghese v Landau [2004] Can LII 5084 (Ont SC) and Deep v College of Physicians and Surgeons of Ontario [2010] ONSC 5248 (Ont SC). But all of these other than Sovereign Motor Inns v Howarth Asia Pacific were cases of actions against adverse experts or independent experts. It is highly desirable that at this appellate level, in cases where issues of legal policy are concerned, the Court should be informed about the position in other common law countries. This Court is often helped by being referred to authorities from other common law systems, including the United States. It is only in the United States that there has been extensive discussion in the case law of the policy implications of removal of immunity for actions by disappointed clients against their experts. On this appeal the appellant did not rely on the United States material, although it is helpful to his case. The respondents counsel drew attention to some of the United States cases on the basis of research which (it was said) was slightly hampered by the renovation of the Middle Temples American room. But there is an outstanding collection of United States material in the Institute of Advanced Legal Studies in London University, and (provided the barristers or solicitors concerned are prepared to make the expenditure) all of the material is readily available on line. Lord Wilberforce said in Buttes Gas & Oil Co v Hammer (Nos 2 & 3) [1982] AC 888, 936 937: When the judicial approach to an identical problem between the same parties has been spelt out with such articulation in a country, one not only so closely akin to ours in legal approach, the fabric of whose legal doctrine in this area is so closely interwoven with ours, but that to which all the parties before us belong, spelt out moreover in convincing language and reasoning, we should be unwise not to take the benefit of it. This is not, of course, as that case was, litigation between the same parties in the two countries, but the principle is the same. In the present context the American State courts have considered and dealt with precisely the same arguments of policy which have been argued before this court. In the last 20 years several State courts have considered the immunity of retained or so called friendly experts, sued by the party which retained them. The respondents counsel suggested that the Court would not derive much assistance from these cases, because (it is said) the culture relating to expert evidence is different in the United States. There are, it is true, many references to the expert (who, of course, will be giving evidence in jury trials) as a hired gun (e.g. Blackwell v Wyeth, 971 A 2d 235, 245 (Ct App Md 2009), quoting Judge Weinstein an expert can be found to testify to the truth of almost any factual theory, no matter how frivolous) and there have been well known concerns about the practice of shopping around for experts and the venality of some of them, and the lack of specific procedural guides to the conduct of experts by contrast with England, where the Woolf reforms have sought to entrench and give teeth to the principle. But the underlying principle is the same: the expert owes a duty to the client, but also owes a duty to the court, as a servant of the court, to present truthful and competent evidence: Marrogi v Howard, 805 So 2d 1118, 1132 (La 2002); and cf Federal Rules of Evidence, rules 102, 702. In 1983 the United States Supreme Court re affirmed the general principle of witness immunity in Briscoe v LaHue, 460 US 325 (1983). That was an action in which police officers were held to be absolutely immune from action arising out of their evidence in a criminal trial. Apart from a passing reference in a footnote (at p 341, n 27) the Supreme Court did not touch on the subject of expert witnesses. In the United States witness immunity has generally been applied to adverse and court appointed experts: e.g. Provencher v Buzzell Plourde Associates, 711 A 2d 251 (NH 1998); Dalton v Miller, 984 P 2d 666 (Colo Ct App 1999); McNall v Frus, 784 NE 2d 238 (Ill App Ct. 2002). The question was first considered in the State of Washington, but its courts stand alone in recent years in upholding the immunity: Bruce v Byrne Stevens & Associates Engineers Inc, 776 P 2d 666 (Wash.1989). The rationale of the decisions upholding immunity included these: that absence of immunity would lead to a loss of objectivity, and the threat of civil liability would encourage experts to assert extreme positions favourable to the client; it would run counter to the fundamental reason for expert evidence, which was to assist the court in a matter which was beyond its fact finding capabilities; there is a need to promote finality of judgments by discouraging endless collateral litigation; and fewer experts would be willing to become involved in litigation if they could later be sued by the party who retained them. Other States which have considered the matter have come to a different view: California, Missouri, Pennsylvania, Connecticut, Massachusetts, and Louisiana: Mattco Forge Inc v Arthur Young & Co, 6 Cal Reptr 2d 781 (Ct.App.1992) and Lambert v Carneghi, 70 Cal Reptr 3d 626 (2008); Murphy v AA Matthews, 841 SW 2d 671 (Mo.1992); LLMD of Michigan Inc v Jackson Cross Co, 740 A 2d 186 (Pa. 1999); Pollock v Panjabi, 781 A 2d 518 (Conn.Super. Ct.2000); Boyes Bogie v Horvitz & Associates, 14 Mass L Reptr 208 (Mass Sup Ct 2001); Marrogi v Howard, 805 So 2d 1118 (La.2002). The policy reasons in these decisions included these: The reality is that an expert retained by one party is not an unbiased witness, and the threat of liability for negligence may encourage more careful and reliable evaluation of the case by the expert. Consequently, the threat of liability will not encourage experts to take extreme views. The client who retains a professional expert for court related work should not be in a worse position than other clients. The practical tools of litigation, including the oath, cross examination, and the threat of perjury limit any concern about an expert altering his or her opinion because of potential liability. The risk of collateral litigation is exaggerated. There is no basis for suggesting that experts will be discouraged from testifying if immunity were removed most are professional people who are insured or can obtain insurance readily, and those who are not insured can limit their liability by contract. See, for a critical analysis, Jurs, The Rationale for Expert Immunity or Liability Exposure and Case Law since Briscoe: Reasserting Immunity Protection for Friendly Expert Witnesses (2007 2008) 38 U Mem LR 49. In England there has never been complete immunity for expert witness evidence, any more than there has been complete immunity for other witnesses. The general principle does not preclude prosecutions for perjury, or for perverting the course of justice, or for contempt of court, or liability for malicious prosecution, or misfeasance in public office: see, e.g. Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435. Any suggestion of a potentially unsatisfactory chilling effect on expert witnesses is inconsistent with the liability to a prosecution for perjury for untruthful evidence and with liability to disciplinary proceedings for unprofessional conduct in the preparation or presentation of expert evidence. The immunity has never prevented the possibility of prosecution for perjury of an expert witness who deliberately misleads the court although it would of course be very difficult to prove its elements. As Sir George Jessel MR said in Lord Abinger v Ashton (1873) 17 LR Eq 358, 373 374: in matters of opinion I very much distrust expert evidence, for several reasons. [A]lthough the evidence is given on oath, in point of fact the person knows he cannot be indicted for perjury, because it is only evidence as to a matter of opinion. So that you have not the authority of legal sanction. A dishonest man, knowing that he could not be punished, might be inclined to indulge in extravagant assertions on an occasion that required it. The potential effects of a sanction by a professional body are more serious than the effects of civil proceedings by a dissatisfied client (where the expert will usually, although not invariably, be insured). An expert may lose his livelihood and entire reputation as a result of an adverse ruling by a professional disciplinary body, but no suggestion has been made on this appeal that the Court of Appeal was wrong to decide that witness immunity does not protect an expert witness from disciplinary proceedings for unprofessional conduct in the preparation of, or giving of, expert evidence: Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462. There are no longer any policy reasons for retaining immunity from suit for professional negligence by expert witnesses. The danger of undesirable multiplicity of proceedings has been belied by the practical experience of the removal of immunity for barristers. A conscientious expert will not be deterred by the danger of civil action by a disappointed client, any more than the same expert will be deterred from providing services to any other client. It is no more (or less) credible that an expert will be deterred from giving evidence unfavourable to the clients interest by the threat of legal proceedings than the expert will be influenced by the hope of instructions in future cases. The practical reality is that, if the removal of immunity would have any effect at all on the process of preparation and presentation of expert evidence (which is not in any event likely), it would tend to ensure a greater degree of care in the preparation of the initial report or the joint report. It is almost certain to be one of those reports, rather than evidence in the witness box, which will be the focus of any attack, since it is very hard to envisage circumstances in which performance in the witness box could be the subject of even an arguable case. For these reasons and those given by Lord Phillips and Lord Dyson, I would allow the appeal. I agree that this appeal should be allowed for the reasons given by Lord LORD KERR Phillips. It has not been disputed that an expert witness owes a duty to the client by whom he has been retained. Breach of that duty should, in the normal course, give rise to a remedy. This is the unalterable back drop against which the claim to immunity must be made. Whether or not witness immunity has had a long history (and, as to that, I agree with Lord Dyson that this is far from clear) this court should not be deflected from conducting a clear sighted, contemporary examination of the justification for its preservation. This is particularly required because the immunity has its roots in a time when, as Lord Phillips has pointed out, it was not customary for experts to offer their services under contract for reward. Although the circumstances of modern litigation are substantially different from those which obtained when immunity from suit was extended to all who participated in litigation, many of the reasons that it is said to be necessary are strikingly similar to those which underlay its original recognition. These are given something of a modern twist by the suggestion that not only would witnesses be deterred from giving evidence but that those who testified would be inclined to tailor their evidence to guard against the risk of being sued. Both these consequences are claimed to be the product of fear that would descend on potential witnesses faced with the daunting prospect of adverse litigation. This line of reasoning can be traced back to the decision of Mr Tuckey QC, sitting as a deputy High Court judge, in Palmer v Durnford Ford [1992] QB 483 and the way that this decision influenced the outcome of the appeal in Stanton v Callaghan [2000] QB 75. It is to be noted that in Palmer it was not in dispute that witnesses enjoyed immunity from suit in respect of evidence given whether in civil or criminal proceedings. What was in issue in the case was whether that immunity should extend to work undertaken by the expert in advising the client whether he had a good case worthy of pursuit. At p 488H Mr Tuckey said this: the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. It is important to recognise that this approach was modelled on what Mr Tuckey described as the analogous but not identical situation of the advocate's immunity from suit for what he does in court considered by the House of Lords in Saif Ali v Sydney Mitchell & Co [1980] AC 198. Of course, the decision in that case to the effect that an advocate was immune from suit for advocacy has been overtaken by the later decision in Arthur J S Hall & Co v Simons [2002] 1 AC 615 where that immunity was swept away. In the meantime, however, the Court of Appeal in Stanton had to confront the question of whether an expert was immune from suit in respect of the contents of a joint statement to which he had contributed following a site meeting between the defendant and the insurers' expert witness. In deciding that immunity should attach to the contents of the report and relying on the decision in Palmer, Chadwick LJ said this at pp 100H 101A: the only ground of public policy that can be relied upon as a foundation for immunity in respect of the contents of an expert's report, in circumstances where no trial takes place and the expert does not give evidence, is that identified by Lord Morris of Borth y Gest in Rondel v Worsley [1969] 1 AC 191, 251G and referred to by Lord Diplock in Saif Ali v Sydney Mitchell & Co [1980] AC 198, 222B: It has always been the policy of the law to ensure that trials are conducted without avoidable strains and tensions of alarm and fear. The rather incongruous outcome of this process of reasoning is that although initially an expert could be expected to be sanguine about the prospect of suit when giving preliminary advice, he would be overcome by fear and apprehension as the date for trial approached. It would also lead to the paradox articulated by Lord Phillips in para 42 of his judgment to the effect that a more convincing case for an immunity could be made, not at the stage of giving evidence, but at the earlier stage when advice that may subsequently prove inconvenient may have been given. When confronted with this, Mr Lawrence QC was prompted to suggest that the zone of protection should be extended backwards so as to comprehend advice given at the early stage. I would have no hesitation in rejecting that suggestion firstly because it would be a wholly retrograde step and would involve reversing well established authority to contrary effect. More importantly, however, there is no evidence that witnesses would react in this way in anticipation of possible proceedings by disappointed clients. In particular, there is nothing to support the assumption that conscientious witnesses (which, if assumptions are to be made at all, professional witnesses must be presumed to be) would behave discreditably by modifying their opinions from those they truly held because they feared that an aggrieved client might unwarrantably seek redress against them. If an expert expresses an honestly held view, even if it differs from that which he may have originally expressed, provided it is an opinion which is tenable, he has nothing to fear from a disgruntled party. Pitched against the arguments that witnesses might be influenced to distort their evidence is the fundamental consideration that breach of a duty owed by a witness to his client should, in the normal course, give rise to a remedy. Properly examined, the claimed chilling factors that would descend on expert witnesses if there was removal of the immunity are highly unlikely to materialise. In the final analysis, the only possible reason for preservation of the rule is its supposed longevity. Even if that could be established, it is in no sense an adequate justification for maintaining an immunity whose effect is to deny deserving claimants of an otherwise due remedy. LORD DYSON The duty owed by an expert witness It is not in dispute that an expert who acts in civil litigation owes his client a duty to act with reasonable skill and care. He owes this duty in contract (section 13 of the Supply of Goods and Services Act 1982) and in tort (on the basis of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465). He holds himself out as a skilled and competent person. The client relies on his advice in determining whether to bring or defend proceedings, in considering settlement values and in appraising the risks at trial. The client also relies on him to give the court skilled and competent expert opinion evidence. This was rightly acknowledged by Chadwick LJ in the leading case of Stanton v Callaghan [2000] QB 75, 88E: Mr Callaghan was a professional man who undertook, for reward, to provide advice within his expertise. The expectation of those who engaged him must have been that he would exercise the care and attention appropriate to what he was engaged to do. I would find it difficult to accept that Mr Callaghan did not share that expectation. But an expert witness who is retained to act for a client in relation to litigation also owes a duty to the court. CPR 35.3 provides: (1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. The existence of this duty is affirmed by para 4.1 of the Protocol for the Instruction of Experts to give Evidence in Civil Claims 2005 which provides: Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them. This Protocol was drafted by the Civil Justice Council with the assistance of work done by the Expert Witness Institute and the Academy of Experts. It was cited with approval by Sir Anthony Clarke MR in Meadow v General Medical Council [2007] QB 462, para 22. The overriding duty of an expert to the court in relation to criminal proceedings is reflected in Part 33.2(1) of the Criminal Procedure Rules and in relation to family proceedings in para 3 of Practice Direction (Family Proceedings: Experts) [2008] 1 WLR 1027. There is no conflict between the duty owed by an expert to his client and his overriding duty to the court. His duty to the client is to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline. This includes a duty to perform the overriding duty of assisting the court. Thus the discharge of the duty to the court cannot be a breach of duty to the client. If the expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions, he will have discharged his duty both to the court and his client. If, however, he gives an independent and unbiased opinion which is outside the range of reasonable expert opinions, he will not be in breach of his duty to the court, because he will have provided independent and unbiased assistance to the court. But he will be in breach of the duty owed to his client. In saying that an expert who is engaged for reward by his client owes the client a duty of care both in contract and tort, I do not, of course, seek to prejudge the question raised on this appeal whether such an expert is immune from suit. The present state of the law The immunity of witnesses as a general class is long established. But the particular question of whether expert witnesses retained for reward by their clients enjoy immunity from liability does not seem to have been considered until it arose in Palmer v Durnford Ford [1992] QB 483. In that case it was not in issue that it was well settled that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil action in respect of evidence given during those proceedings (emphasis added). The issue in Palmer was to what extent that immunity extended to the activities of the expert at the pre trial stage. Mr Simon Tuckey QC held that the immunity extended to work which was preliminary to his giving evidence (such as the production or approval of a report for the purposes of disclosure), but not to work done for the principal purpose of advising the client. In drawing the line in this way, he avowedly followed the approach that had been adopted by the House of Lords in Saif Ali v Sydney Mitchell & Co [1980] AC 198 in relation to the immunity of advocates. The correctness of Palmer has not since been challenged. In Stanton, the Court of Appeal drew heavily on Mr Tuckeys judgment in Palmer (as well as the decisions of the House of Lords in Rondel v Worsley [1969] 1 AC 191 and Saif Ali). It is important to note that the decision in Stanton pre dated the decision in Arthur J S Hall & Co v Simons [2002] 1 AC 615. There are several features of the current state of the law to which I would draw attention. First, the rationale given for the decision in Palmer was that there is a close analogy between the position of experts and that of advocates, so that the immunity/liability line in relation to experts should be drawn at a point which is analogous to the point at which it was drawn in Saif Ali in relation to advocates. As Mr Tuckey said at p 488F, the problem of where to draw the line was considered in Saif Ali in the analogous but not identical situation of the advocates immunity from suit for what he does in court. If the analogy is good, it should follow that since (following Arthur Hall) advocates no longer have the immunity, experts should not have it either. In other words, the reasoning in the case of Palmer leads to the inevitable conclusion that it would have been decided differently today. Secondly, Mr Tuckey recognised that it might be difficult to decide in any given case whether the experts work can fairly be said to be (i) preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done or (ii) work done for the principal purpose of advising the client. He said at p 489A: Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. I do not think that difficulty in drawing the line precisely should result in a plaintiff in a case such as this being denied all remedy against his expert. But this uncertainty, generated by the difficulty of knowing where to draw the line in any given case, is inherently unsatisfactory, since the difficulty itself contains the seeds of potential litigation. Moreover, there should be a degree of certainty as to the existence of an immunity if it is to be fair and effective. The expert should know in advance whether what he or she says will or will not be protected. This point has been made on a number of occasions. Thus, for example, see per Lord Clyde in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, 457C. In Arthur Hall, Lord Hope said at p 724F that a further reason for regarding the core immunity in the civil field as no longer justifiable was the difficulty of finding a satisfactory way of defining the limits of the immunity. Lord Hutton said at p 729D that the Saif Ali test had proved difficult to apply in practice and had given rise to considerable uncertainty. He agreed with the observation of Kirby J in Boland v Yates Property Corpn plc Ltd (1999) 74 ALJR 209, 238, para 137 that it was obviously desirable that a clear line establishing the limits of an advocates immunity should be drawn. Thirdly, as Lord Phillips points out, the Palmer approach gives rise to the paradox which he explains at para 42 above. I cannot agree with Lord Hope that there is a formidable body of authority in support of the Palmer approach. More important, however, is the fact that, as I have said, the very foundation that was identified by Mr Tuckey as the basis for that approach, namely the analogy with the position of advocates, now suggests that the immunity for experts should be removed as it has been for advocates. The correct starting point There are two possible views as to the correct starting point for a consideration of the question whether experts should have immunity. The first is that there is a general rule that every wrong should have a remedy and that any exception to this rule must be justified as being necessary in the public interest. The second is that there is a different general rule, which is long established and founded on grounds of public policy, that witnesses may not be sued for anything said in court and that, if there is to be an exception to that rule, it too must be justified in the public interest. This is Lord Hopes approach. He acknowledges that the general rule that where there is a wrong there should be a remedy is a valuable guide in the right context. But he says that this rule cannot prevail in the present context because it runs contrary to long established authority. In other words, the existence of a long established exclusionary rule is itself a sufficient reason for holding that it is necessary to deny a remedy to those who have suffered a wrong. I respectfully disagree with this approach for two reasons. First, upon close examination the rule that an expert witness retained for reward is immune from liability is not long established. As Lord Wilberforce explained at p 214E in Saif Ali, it is necessary to disentangle three separate strands in relation to the immunity of barristers. The first is the privilege which attaches to proceedings in court and protects equally the judge, counsel, witnesses, jurors and parties. It has nothing to do with a barristers duty to his client. The second is that in the nature of things an action against a barrister who acts honestly and carefully is very unlikely to succeed. The third is that the barrister enjoys immunity from an action, which depends upon public policy. In fixing its boundary, account must be taken of the counter policy that a wrong ought not to be without a remedy. Thus, the fact that there was a long standing rule that all who participated in a trial enjoyed absolute privilege was not because they did not owe a duty of care to those who might be adversely affected by what they said at the trial. As Lord Phillips points out, this rule was established long before the modern law of negligence and, in particular, long before liability for negligent misstatement was first recognised. There is no long established rule that witnesses are immune from liability to their clients in respect of what they say at trial and in connection with litigation. As I have said, the distinct position of such witnesses does not seem to have received the attention of the courts until Palmer. It is true that Palmer has been approved on a few occasions, but in so far as the rule has been applied in relation to the liability of expert witnesses to their clients, it has shallow roots. But secondly, even if there is such a long established rule, it is based on policy grounds and cannot survive if the policy grounds on which it is based no longer justify the rule. The mere fact that the immunity is long established is not a sufficient reason for blessing it with eternal life. Circumstances change as do attitudes to the policy reasons which underpin the immunity. The common law develops in response to these changes. The history of the rise and fall of the immunity of advocates provides a vivid illustration of the point. As Lord Reid observed in Rondel v Worsley at p 227C, public policy is not immutable and any rule of immunity requires to be considered in the light of present day conditions. The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional. As has been frequently stated, any justification must be necessary and requires strict and cogent justification: see, for example, per Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 214D; Darker v Chief Constable of the West Midlands Police per Lord Hope at p 446D, per Lord Clyde at p 456H and per Lord Hutton at p 468F. If the position were otherwise, the law would be irrational and unfair and public confidence in it would be undermined. Furthermore, the justification for any exception to this general rule should be kept under review. That is what happened in relation to the immunity of barristers. Their immunity for all that they did was recognised by the House of Lords in Rondel v Worsley. It was based on the public policy grounds that the administration of justice required that a barrister should be able to carry out his duty to the court fearlessly and independently, and that actions for negligence against barristers would make the retrying of the original actions inevitable and so prolong litigation contrary to the public interest. In Saif Ali the immunity was limited (again on grounds of public policy) to what barristers did in court and to work that could fairly be said to affect the way that the case would be conducted if it came to a hearing. Finally, the immunity was swept away altogether in Arthur Hall, when it was decided that the public policy grounds previously relied on were no longer sufficient to justify a departure from the general rule that where there was a wrong there should be a remedy. It follows that the issue that arises on this appeal is whether there is a compelling need to continue the immunity enjoyed by expert witnesses from liability to their clients. Is the immunity justified? Two reasons have been advanced in support of the continued immunity. The first is that it is necessary to ensure that expert witnesses will be prepared to give evidence at all. Like Lord Phillips and Lord Hope, I am not impressed with this argument. From time to time, the court is called upon to make decisions on whether to grant or withhold immunity from suit in certain classes of case. It does not expect to be able to make decisions of this kind on the basis of empirical evidence. In my view, surveys such as that carried out at the Bond Solon Annual Expert Witness Conference in November 2010 are of very limited value. It is unrealistic to look for hard evidence in this area. It is easy to assert that professional persons will refuse to act as expert witnesses if they cease to enjoy immunity. The court has to exercise its judgment in assessing the validity of such an assertion. Whether professional persons are willing to give expert evidence depends on many factors. I am not persuaded that the possibility of being sued if they are negligent is likely to be a significant factor in many cases in determining whether a person will be willing to act as an expert. Negligence is not easy to prove against an expert witness, especially in relation to what he or she says in the heat of battle in court. This is the second of the three strands identified by Lord Wilberforce at p 214E in Saif Ali. Professional indemnity insurance is available. Professional persons engage in many activities where the possibility of being sued is more realistic than it is in relation to undertaking the role of an expert in litigation. Thus, for example, it is a sad fact of life that births sometimes go wrong and when that happens, parents sometimes look for someone to blame. But that does not stop people from practising as obstetricians. The second reason advanced in support of maintaining the immunity is that expert witnesses would be reluctant to give evidence against their clients interests if there was a risk that they would be sued. This is the divided loyalty argument that was considered in relation to advocates in Rondel v Worsley, Saif Ali and Arthur Hall. The argument in those cases was that the advocate owes an overriding duty to the court and unless there was immunity from liability to the client, there was a danger that they would disregard their duty to the court. Lord Hope suggests in the present case that the duties owed by the advocate to the court are not as far reaching as those owed to the court by the expert. But it is significant that in Rondel v Worsley and Saif Ali the House of Lords described the advocates duty to the court as overriding and regarded that fact as one of the reasons for not withdrawing the immunity. In Arthur Hall, Lord Hoffmann recognised that the duty of the advocate to the court is extremely important in the English system of justice. He described the divided loyalty argument as being that the possibility of being sued for negligence would actually inhibit the lawyer, consciously or unconsciously, from giving his duty to the court priority to his duty to his client. That is precisely the argument advanced by Mr Lawrence in the present case. It is therefore relevant to examine the way in which the divided loyalty argument was dealt with in Arthur Hall. The fullest treatment of it is in the speech of Lord Hoffmann at p 692F: To assess the likelihood [of the removal of the immunity having a significant adverse effect], I think that one should start by considering the incentives which advocates presently have to comply with their duty and those which might tempt them to ignore it. The first consideration is that most advocates are honest conscientious people who need no other incentive to comply with the ethics of their profession. Then there is the wish to enjoy a good reputation among ones peers and the judiciary. There can be few professions which operate in so bright a glare of publicity as that of the advocate. Everything is done in public before a discerning audience. Serious lapses seldom pass unnoticed. And in the background lie the disciplinary powers of the judges and the professional bodies. Looking at the other side of the coin, what pressures might induce the advocate to disregard his duty to the court in favour of pleasing the client? Perhaps the wish not to cause dissatisfaction which might make the client reluctant to pay. Or the wish to obtain more instructions from the same client. But among these pressures, I would not put high on the list the prospect of an action for negligence. It cannot possibly be negligent to act in accordance with ones duty to the court and it is hard to imagine anyone who would plead such conduct as a cause of action. Although the analogy between the advocate and the expert witness is not precise, it is sufficiently close for much of what Lord Hoffmann said in this passage to be equally applicable to expert witnesses. In particular, like advocates, they are professional people who can be expected to want to comply with the rules and ethics of their profession. Experts can be in no doubt that their overriding duty is to the court. That is spelt out in the rules and they are reminded of the duty every time they write a report: rule 35.10(2) states that at the end of the experts report there must be a statement that the expert understands and has complied with their duty to the court. There is no reason to doubt that most experts are honest conscientious people who need no other incentive to comply with their duty and the rules and ethics of their profession. There may be a few experts (as there may be a few advocates) who behave dishonourably. But that is no more compelling a reason for retaining the immunity for experts than it was for retaining it for advocates. As Lord Hoffmann said in relation to advocates, the prospect of an action for negligence is unlikely to tempt an expert to disregard his duty to the court. Experts can and almost always do obtain professional indemnity insurance to cover the risk of negligence. Most of them act honestly and conscientiously because that is what professional men and women do. It follows from what I have said that I cannot agree with what Lord Hoffmann said at p 698D G about expert witnesses. He said of Stanton that it was an example of a general immunity for acts done in the course of litigation which fell squarely within the traditional witness immunity; and that a witness owes no duty of care to anyone in respect of the evidence he gives to the court. For the reasons that I have given, an expert engaged for reward does owe a duty of care to his client. The only question is whether there are sufficiently compelling policy reasons for according the expert immunity from suit. It is in any event difficult to see how immunity would promote the discharge by experts of their duty to the court. The lesson of history suggests that it would not do so. Even before the Woolf reforms, it was well established that an expert witness owed a duty to be independent and assist the court: see The Ikarian Reefer [1993] 2 Lloyds Rep 68, 81, and the cases cited there. But that did not dissuade the hired gun, who all too often walked the stage before the Woolf reforms, from acting in a partisan way, even though at that time he enjoyed immunity from suit. It follows that I am not convinced by either of the reasons advanced in justification of the immunity. I am even less persuaded that the immunity is necessary in the public interest or that there is a sufficiently compelling reason to justify continuing to deny a remedy to a person who has suffered loss as a result of his experts breach of the duty of care owed in contract and tort. Should the immunity of expert witnesses survive for any purpose? Nothing that I have said is intended to undermine the long standing absolute privilege enjoyed by other witnesses in respect of litigation. Although it is unnecessary to decide the point, as presently advised I can see no reason to treat expert witnesses who are engaged in criminal and family litigation any differently from those engaged in civil litigation. Conclusion For these reasons as well as those given by Lord Phillips, I would hold that the immunity of expert witnesses from liability to their clients for breach of duty (whether in contract or negligence) can no longer be justified. I would, therefore, allow this appeal. LORD HOPE The question in this case is whether an exception should be made to the rule that witnesses may not be sued in respect of evidence given in court, or things said or done in contemplation of giving evidence in court, where the witness is an expert who accepts instructions from the litigant to give evidence for reward. The respondent is said to have negligently signed an inaccurate joint statement which had been prepared as directed by the judge under CPR 35.12(3). She did not give evidence in court, as the case was subsequently settled. So it is her conduct when she agreed to the way the joint statement had been worded by the other sides expert that is the focus of attention. It is common ground that the immunity rule applies to things said or done, or omitted to be said or done, by an expert witness at that stage of the proceedings unless it is subject to the exception for which the appellant contends: see Watson v MEwan [1905] AC 480. In that case it was held that the privilege of a witness extends to statements made in a preliminary statement with a view to giving evidence. I have not found this an easy question to answer, for a variety of reasons. The first is to be found in the nature and purpose of the rule itself, which must be the starting point for an inquiry as to whether an exception should be made to it. The second is to be found when an attempt is made to define the limits of the exception. The third is the lack of firm evidence, pointing either one way or the other, as to the need for the exception or as to the consequences if it were to be introduced. The question whether the rule continues to perform a useful function has been raised from time to time. Andrew Edis, Privilege and immunity: problems of expert evidence (2007) CJQ 40, suggested that compliance with the experts duty to the court would be enhanced by its removal. But it is a very different thing for it to be removed retrospectively, as I assume it will have to be if the appellants claim is be given effect, by a decision of seven Justices in this Court, from which there would be no way back except by legislation enacted by Parliament. I doubt whether it is right that we should proceed in this way only on the basis of assumptions, which is really all we have to go on in this case. I regret too the absence of any intervention in these proceedings by a body with experience across the whole range of this area of practice, such as the Academy of Experts, which could have provided us with evidence to inform our judgment. In Arthur J S Hall & Co v Simons [2002] 1 AC 615, in which the opportunity was taken to challenge the decision of the House of Lords in Rondel v Worsley [1969] 1 AC 191 on the question of the immunity given to advocates, the House had the benefit of argument from the Bar Council which was given leave to intervene. As Lord Steyn said at p 676, it played a particularly helpful part in the appeal. The House was, of course, dealing in that case with an issue which was within the personal experience of all members of the Appellate Committee, and it was known that advocates were already under a professional obligation to carry insurance: see Lord Steyn, p 682; Lord Hoffmann, p 691. In this case we are dealing with an area of practice with whose precise limits I suspect I am not alone in being less familiar. I am unwilling to assume that every witness who gives evidence as an expert belongs to a professional organisation or engages regularly in court work. Some may be academics, and some may come forward to give expert evidence only once in a lifetime. It seems to me that it would be unwise to assume that they all have insurance cover against claims for negligence. I am also unimpressed by the line of argument that the rule should not be allowed to provide a shelter for the negligent expert who is in breach of the duty that he owes to the client from whom he has accepted instructions or by whom he is being paid. Of course, if the point is put that way round the immunity that the rule currently provides may seem objectionable. But, as I shall mention later, it was recognised long ago that it is not the purpose of the rule to protect those who are guilty of such transgressions. Its purpose is to ensure that witnesses are not deterred from coming forward to give evidence in court and from feeling completely free to speak the truth when they do so, without facing the risk of being harassed afterwards by actions in which allegations are made against them in an attempt to make them liable in damages. It is important not to lose sight of this fundamental principle. To do so risks devaluing the rule. It diverts attention from the consequences for those who are wholly innocent of any transgression for which damages could properly be awarded, but are nevertheless exposed to harassment by the disgruntled or the unscrupulous. There has been no challenge to the policy justification as it applies to witnesses generally. So the question in this case is whether the reasons which justify an immunity for witnesses generally do not apply to expert witnesses. The grounds for making that exception by judicial decision need to be examined and explained very carefully. This is because they may have implications for the immunity which is at present given to other kinds of witness against whom a breach of duty may be alleged. An incautious removal of the immunity from one class of witness risks destabilising the protection that is given to witnesses generally. The rule The rule that affords immunity to witnesses when giving evidence in court, or with a view to giving evidence, is not itself in doubt. But I think that it is important, before deciding whether an exception should be made to it in the case of expert witnesses, to examine the origins of the rule and the grounds of policy on which it is based. The rule is of very long standing, perhaps as early as the 16th century: see DOrta Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 214 ALR 92, para 39. It was recognised in the 17th century that judges, with whose immunity that which is given to witnesses there is an affinity, should not be exposed to action, at least in dubious cases where just and rational men might be of different judgments: otherwise no man but a beggar, or a fool, would be a judge: Stair, Institutions of the Law of Scotland (2nd ed, 1693), IV, 1, 5. Two centuries later, in Dawkins v Lord Rokeby (1873) LR 8 QB 255, 264, Kelly CB declared: no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice. That this principle had long been recognised in English law can be seen from Lord Mansfields statement in R v Skinner (1772) Lofft 55 that: neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office. As Lord President Inglis observed in Williamson v Umphray and Robertson (1890) 17 R 905, 910 911 where the claim was one of libel, the rule that gives that privilege to judges, jurors, counsel and witnesses is founded on obvious grounds of public policy: It is essential to the ends of justice that persons in such positions should enjoy freedom of speech without fear of consequences, in discharging their public duties in the course of a judicial inquiry. But the motive of the law is not to protect corrupt or malevolent judges, malicious advocates, or malignant and lying witnesses, but to prevent persons acting honestly in discharging a public function from being harassed afterwards by actions imputing to them dishonesty and malice, and seeking to make them liable in damages. The Lord President referred in support of this explanation of the purpose of the rule to the following passage in the speech of Lord Penzance in the House of Lords in Dawkins v Lord Rokeby (1875) LR 7 HL 744, 755 756: If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man. But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is, whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that imputation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands. Commenting on that passage in Primrose v Waterston (1902) 4 F 783, in which an action for slander was brought against a magistrate, Lord Moncreiff said at pp 793 794 that the reason for the wideness of the protection was that experience showed that, although the judge might after trial succeed in clearing himself of the imputation, he would be exposed to being called on to answer what ex facie of the summons was apparently a relevant charge: Now, if that were once permitted the protection of absolute privilege would disappear; and therefore the only sound rule is to grant that protection unless it can be demonstrated that is, shewn so clearly that no man of ordinary intelligence and judgment could honestly dispute it that the words used had no connection with the case in hand. The result of this, no doubt, is that in an exceptional case like that which we have before us, of a judge who is unable to restrain himself, hardship is inflicted on the person to whom the remarks are addressed. But on the other hand it is to be remembered that, thanks to the protection afforded by the privilege, ninety nine out of a hundred judges are enabled to discharge their duties without fear or favour and without the dread of an impending action. Although Lord Moncreiff was there speaking of the rule in its application to judges, his point applies with equal force to the position of witnesses. There will, of course, be some who may abuse the privilege and against whom allegations might reasonably be made that what they said in the witness box was malicious and defamatory. But the privilege exists for the protection of all witnesses, not just the few against whom successful actions might otherwise be brought for an award of damages: see also Munster v Lamb (1883) 11 QBD 588, 607 where Fry LJ said that the purpose of the rule was to protect persons acting bona fide who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions. In Watson v MEwan [1905] AC 480 the Lord Chancellor, the Earl of Halsbury, said that the privilege of a witness, the immunity from responsibility in an action in which evidence has been given by him in a court of justice, was too well established then to be shaken. He described it as one of the necessities of the administration of justice. In that case a medical practitioner, whom the pursuer had employed as her professional adviser with a view to an action she proposed to bring against her husband for separation and aliment, then gave evidence for the husband in that same action. This was said to have come about because he expressed views to the husbands solicitors that made it evident that his opinion was adverse to the position that the wife wished him to adopt. This led to his being requested by those acting for the husband to give evidence on his behalf. He agreed to do so, and in the course of his evidence referred to matters which he had learned on the occasion of his professional visit to the wife relevant to her state of health which, so it was alleged, impressed the judge unfavourably to the wifes case and without which, it was said, she would have been successful. An action of damages was then raised by the wife against him for slander and breach of confidentiality. The wifes father raised an action of damages against him on similar grounds. In both cases the question whether the medical practitioner was entitled to witness immunity was raised as a preliminary issue. Reversing the judgment of the Court of Session (see AB v CD (1904) 7 F 72; reported also in the Scots Law Times as MEwan v Watson (1905) 12 SLT 599), the House of Lords held that the protection that the medical practitioner undoubtedly had as to what he had said in the witness box should be given also to his preliminary examination by those acting for the husband to find out what he could prove if called to give evidence on his behalf. As to that, the Lord Chancellor made this observation: It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony. The facts of that case are of particular interest, especially because this appears to have been the first case that the immunity was invoked in response to a claim other than one for slander. They are best explained in the report of the judgment of the Court of Session at (1904) 7 F 72, in which the averments for both sides are set out. Sir Patrick Watson was a hospital surgeon and clinical teacher with an unrivalled reputation for his operative skill and teaching powers. He accepted instructions from Mrs McEwan with a view to his giving evidence as an expert witness on her behalf. In the event the evidence which he was said to have given, when he appeared as a witness for her husband, was unfavourable to her and in support of the case that was being made against her. He was said in the course of his evidence to have read out notes which he had made during a professional visit when he examined her. They contained entries to the effect that it seemed to him that both the wife and her father were bent on inducing her premature labour (in other words, an abortion) with a view to freeing her from any permanent reminder of the marriage and, if possible, to obtain a separation. This is an early example of the protection being given to an expert witness against an allegation that his evidence to the court was contrary to the interests of the person by whom he had originally been instructed for reward. It was also alleged that what he said was defamatory of her and her father. There was no suggestion that the fact that he may have owed duties to them, such as the duty of confidentiality, made any difference. He was entitled to the protection in the same way as any other witness. The reports of the case in the House of Lords, which describe the case in the head note as one of slander, give the impression that the claim for breach of confidence did not proceed and that the relevant issues before the House were concerned only with the claim for slander. But the report of the case in the Court of Session in the Session Cases shows that the pursuer had proposed four issues for trial: AB v CD (1904) 7 F 72, 76 77. Issue (1) was whether giving the precognition amounted to breach of confidence; issue (2) was whether giving the evidence in court amounted to breach of confidence; issue (3) was whether giving the precognition amounted to slander; and issue (4) was whether giving the evidence in court amounted to slander. The Lord Ordinary disallowed issues (2) and (4), as they related to evidence given in court which attracted the immunity. But he allowed issues (1) and (3), on the view that witness immunity did not extend to giving a precognition. In the Inner House it was argued that the fact that an expert gave evidence by choice and was not compelled to do so meant that he did not require the protection of the immunity. This argument was rejected, and the Inner House agreed with the Lord Ordinary that issues (2) and (4) should be disallowed. But it also disallowed issue (1). Watson then appealed to the House of Lords against the decision of the Inner House that issue (3) should go to trial. This was the issue as to slander in the precognition. The Session Cases report of the case in the House of Lords states that Mrs McEwan cross appealed against the disallowance of the first issue: Watson v MEwan (1905) 7 F (HL) 109, 110. This was issue (1), the issue as to breach of confidentiality in the precognition. The appeal was heard together with an appeal in the action raised by Mrs McEwans father, in which the issues were almost the same. The fathers case has not been separately reported, but the names of both cases appear in the Scots Law Times report at (1905) 13 SLT 340. The Lord Chancellor said that it was impossible to say that any different question arose in the one appeal from that which arose in the other: [1905] AC 480, 485. Both claims as to what was said in the precognition were before the House and, as the outcome of the appeal was that Mrs McEwans case was remitted to the Court of Session to dismiss her action, its ruling that Watson was entitled to the immunity at the precognition stage must be taken to have extended to her claim against him for breach of confidence as well as her claim for slander. That this is how the Lord Chancellor saw the matter appears from the second paragraph of his speech, at p 486, where he said that he was not disposed to express an opinion either way as to the confidential nature of the relationship, which might raise very serious and difficult questions, because he had no difficulty at all in their solution on other grounds: The broad proposition I entertain no doubt about, and it seems to me to be the only question that properly arises here; as to the immunity of a witness for evidence given in a Court of Justice, it is too late to argue that as if it were doubtful. I think that this passage makes it clear that, in his opinion, there were no grounds for distinguishing between the claims that were being made in the action. The immunity extended as much to a claim of damages for breach of a duty of confidence as it did to a claim for slander, or indeed any other claim. The question whether an expert witness was in a different position from an ordinary witness had been raised and dealt with in the Inner House. The decision in Watson v MEwan [1905] AC 480 that the protection extended to the preparation of evidence was applied in Marrinan v Vibart [1963] 1 QB 528. The plaintiff in that case was a barrister who brought an action in damages for conspiracy to make false statements defamatory of him as a barrister against two police officers. They had given evidence against him at a criminal trial and in disciplinary proceedings at an inquiry before the Benchers of Lincolns Inn. His action was held to be barred by the rule of public policy. Sellers LJ, with whom the other members of the Court of Appeal agreed, said at p 535: Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given. [Emphasis added] Salmon J said of the immunity in the same case at first instance, at [1963] 1 QB 234, 237: This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation. In Roy v Prior [1971] AC 470, 480 Lord Wilberforce said that the reasons why immunity is conferred upon witnesses in respect of evidence given in court are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. This appears to have been the first mention of the second of these two reasons in the context of witness immunity. Lord Wilberforces formulation was adopted by Mr Simon Tuckey QC in Palmer v Durnford Ford [1992] QB 483, 487 and by Simon Brown LJ in Silcott v Commissioner of Police of the Metropolis (1996) 8 Admin LR 633, 637. It was referred to also by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 189 when he was discussing the reasons for the immunity in the context of criminal proceedings. He accepted that one of the reasons was to prevent disgruntled prisoners from seeking to have their cases retried in civil suit. But he said that the reason was in fact more broadly based than that. In Stanton v Callaghan [2000] QB 75, 93 94, Chadwick LJ pointed out that Lord Wilberforces second reason, which he appears to have derived from the reasons for the immunity given to barristers in Rondel v Worsley [1969] 1 AC 191, was said by Lord Diplock in Saif Ali v Sidney Mitchell & Co [1980] AC 198, 223 to have overlooked the possibility that the action had been dismissed or judgment entered without a contested hearing so that there was no possibility of restoring the action and proceeding to trial. We are left then with the first reason, which has been the only true basis for the rule from the very beginning. In Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 Lord Hoffmann said that the policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. Once again there is a recognition of the fact that the rule exists for the protection of all witnesses, not just the few against whom successful actions might otherwise be brought. Lord Hoffmann added these words at p 214: If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. It is the need for certainty that also makes it necessary to extend the protection of the rule to all witnesses and to all causes of action that may be brought against them. The rough is taken with the smooth. There will be some cases where a genuine cause of action is excluded by it. But in the vast majority of cases it is the assurance of the protection that enables people against whom no action could reasonably be brought to speak freely without facing the prospect of being harassed by those against whose interests they have spoken. It is an important part of the protection that, as Sellers LJ said in Marrinan v Vibart [1963] 1 QB 528, 535, it extends to whatever form of action is sought to be derived from what was said or done in the proceedings. That had been settled law since the decision of the House of Lords in Watson v MEwan [1905] AC 480, where it was held that the witness was protected by the immunity against a claim for breach of confidence: see para 141, above. In Arthur J S Hall & Co v Simons [2002] 1 AC 615 it was argued for the Bar Council that witness immunity provided a useful analogy to that given to advocates: p 669. For the clients, on the other hand, it was argued that no relevant parallel could be drawn, as the duties that a paid witness owed to his client were subject to the overriding duty to the court to tell the truth: p 671. Lord Hobhouse of Woodborough said at p 741 that the expert witness was in a special position similar to that of the advocate. But Lord Hoffmann at pp 697 698 rejected the expert witness analogy. He said that it was not enough to explain the immunity relating to court proceedings by saying, as Lord Diplock did in Saif Ali v Sidney Mitchell & Co [1980] AC 198, 222, that people involved in litigation should be free from avoidable stress and tensions of alarm and fear. It was necessary to go further and explain why the public interest requires that a particular participant should be free from the stress created by the possibility that he might be sued. The witness rule, he said, depends on the proposition that without it, witnesses would be more reluctant to assist the court. Referring to Stanton v Callaghan [2000] QB 75, in which it was held that an expert could not be sued for agreeing to a joint experts statement in terms which the client thought detrimental to his interests, he said: that seems to me to fall squarely within the traditional witness immunity. The alleged cause of action was a statement of the evidence which the witness proposed to give to the court. A witness owes no duty of care to anyone in respect of the evidence he gives to the court. His only duty is to tell the truth. The question which this case raises is whether Lord Hoffmann was right to declare that the case of the expert witness fell within the traditional witness immunity. The expert witness The observations of Lord Hoffmann and Lord Hobhouse in Arthur J S Hall & Co v Simons [2002] 1 AC 615 indicate that they did not think that the fact that expert witnesses owed a duty of care to their clients was a reason for excluding them from the immunity that is available to witnesses generally. In Watson v MEwan [1905] AC 480 the fact that Sir Patrick Watson may have owed a duty in confidence to his former client made no difference to the result: see paras 139 141, above. Lord Browne Wilkinson made it clear in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 755 that nothing that he had said in that case about the investigation and preparation of evidence by the psychiatrist in proceedings for the protection of a child from abuse was intended to cast doubt on the ruling by Mr Simon Tuckey QC in Palmer v Durnford Ford [1992] QB 483, 488 489 that the protection should be extended to the production or approval of an experts report for the purposes of disclosure to the other side, but not to work done for the principal purpose of advising the client. In the Court of Appeal in X (Minors) v Bedfordshire County Council Sir Thomas Bingham MR too said that in his opinion Mr Simon Tuckey QC reached a correct conclusion in Palmer: [1995] 2 AC 633, 661. There was a difference of view between the Court of Appeal and the House of Lords in that case as to whether there was a sufficiently immediate link between the investigations carried out by the psychiatrist to attract the immunity. But it was common ground that the psychiatrist was in the same position in regard to the immunity as any other witness. This is a formidable body of authority which should not be lightly disregarded. The decision of Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 lends further support to it. In Hughes v Lloyds Bank Plc [1998] PIQR P98 the Court of Appeal assumed that expert witnesses were immune from suit for negligence. In Raiss v Palmano [2001] PNLR 21 a claim for negligence against a surveyor was struck out at first instance but allowed so far as it alleged deceit because he conceded in cross examination that he did not have the qualification claimed in his expert report. On appeal the entire claim against him was struck out. Lord Phillips says that the immunity of expert witnesses from liability in negligence has never been challenged but has simply been accepted. It is true that none of the earlier cases addressed the question of immunity from liability for negligence, and it was accepted in Palmer v Durnford Ford [1992] QB 483 and Hughes v Lloyds Bank Plc [1998] PIQR P98 that in general the paid expert witness is protected by the immunity. But I think, with respect both to him and Lord Dyson, that this view does not do justice to what the authorities, properly understood, reveal to us. The immunity was challenged in Watson v MEwan [1905] AC 480 but held to apply to a claim by a client for breach of the experts duty of confidence. The universality of the rule was declared in that case, and it has been asserted and applied repeatedly since then. Its application to claims for breach of duty by their clients against expert witnesses was expressly recognised by both Lord Hoffmann and Lord Hobhouse in Arthur J S Hall & Co v Simons [2002] 1 AC 615. The fact must be faced that what we are being asked to do in this case is to remove an immunity which until now has been accepted as falling within the universal principle. This is not just a fringe decision of the kind to which Lord Wilberforce referred in Saif Ali v Sidney Mitchell & Co [1980] AC 198, 211 where, as he saw it, the extent of the immunity then given to advocates was in need of being clarified. The leading modern authority on the position of expert witnesses is Stanton v Callaghan [2000] QB 75. In that case too, after reviewing the authorities, the Court of Appeal saw no reason to disturb the ruling in Palmer. Chadwick LJ said at p 101 that he was not persuaded that experts who, as part of their professional practice and for reward, offer their services as potential witnesses on matters within their expertise are prone to strains and tensions of alarm and fear at the stage at which they are preparing their reports for exchange. But the basis in fact for this observation is unclear, and the other members of the Court did not agree with him on this point. Otton LJ said at p 104 in Stanton that there was clear authority that, provided the test of principal and proximate connection is satisfied, the pre hearing work of an expert will be within the protective circle of the witness immunity principle. What remained to be considered was whether it was appropriate to draw the circle narrower so that some experts are admitted and some are not. His conclusion was that, while the need to grant immunity may be more obvious in some cases than others, the courts ought not to rush to draw a rigid boundary between situations where immunity is automatically granted to some and not to others. He reminded himself at p 107 that the immunity is not granted primarily for the benefit of the individuals who seek it. They are the beneficiaries of the public interest to ensure that the administration of justice is not impeded, which is the consideration that should be paramount. Although Nourse LJ was prepared to acknowledge that the rule could not be quite the same for experts as for other witnesses as the expert usually has the dual capacity of advising the client as well as giving evidence in support of his case, he saw no justification for distinguishing between an expert and a lay witness either on the ground that the expert is usually remunerated for his services or on the ground that he may be less likely than a lay witness to be deterred from giving evidence. The proper administration of justice depends frequently on evidence given by expert witnesses. As Otton LJ observed in Stanton at p104, witnesses who claim to be and are treated as experts come from many disciplines and appear in ever widening areas of litigation, ranging from accident reconstruction experts to veterinary surgeons and it might also be said to zoologists. The proceedings in which they are engaged range across the board, from criminal trials at one extreme to professional disciplinary hearings at the other, with a wide variety of civil proceedings in between. And they range from those whose profession is to give expert evidence and who are very familiar with the court process to those who appear once only in a particular case and who are least likely to have protected themselves against the risk of a claim for negligence. Mr Ter Haar QC for the appellant was careful to confine his argument to the facts of this case. His proposition was that an expert in civil cases should no longer have immunity from suit in relation to negligent work performed for the substantial purpose of giving evidence in court. He said that it was no part of his argument that his proposition should be applied to expert witnesses in criminal cases or in family law cases either. Nor was it part of his argument that it should be applied to what the expert witness said when giving evidence in court. But I do not think that, if there are good grounds for removing the immunity from that stage of the proceedings, it would be possible to retain it for the stage when the expert gives evidence in court. And it would be difficult to defend its retention where the expert witness gives evidence, or prepares for the giving of evidence, for his client in other tribunals. The underlying duty of care is the same in all cases. In his report, Access to Justice (1996), Lord Woolf referred in chapter 13, para 3 to the recommendation in chapter 23 of his interim report that the calling of expert evidence in civil cases should be under the complete control of the court. His concern was that a more economical use should be made of this type of evidence by narrowing the issues between opposing experts as early as possible. Among the points that he made about the way expert evidence was being used was a concern that experts sometimes took on the role of partisan advocates instead of neutral fact finders or opinion givers. In chapter 13, para 25 of his report he said that there was wide agreement that the experts role should be that of an independent adviser to the court, and that lack of objectivity could be a serious problem. In para 27 he said that it was important that each opposing experts overriding duty to the court was clearly understood. In para 30 he said that there was widespread agreement that an experts report intended for use as evidence in court proceedings should be addressed to the court. These observations formed the basis for the rules that are now set out in CPR Part 35 and for Practice Direction 35 which supplements them. CPR Part 35 and the Practice Direction are designed for use in civil cases only. They do not apply to criminal cases, and they do not apply in Scotland either. But it seems to me that the principles which they express are of universal application in criminal cases arguably even more so, in view of the overriding public interest in securing the ends of justice in proceedings of that kind. CPR 35.2(1) states that a reference to an expert in the Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings. CPR 35.3 states: (1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. In National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyds Rep 68, 81 Cresswell J said, of the duties and responsibilities of experts in relation to the party and to the court, that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation, and that an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. He referred, in support of these propositions, to Lord Wilberforces observations in Whitehouse v Jordan [1981] 1 WLR 246, 256 and those of Garland J in Pollivitte Ltd v Commercial Union Assurance Company Plc [1987] I Lloyds Rep 379, 386 and Cazalet J in In re J (Child Abuse: Expert Evidence) [1991] FCR 193. There is, then, an obvious conflict between the duties that the expert owes to his client and those that, in the public interest, he owes to the court. Lord Hoffmann was perhaps overstating the position when he said in Arthur J S Hall & Co v Simons [2002] 1 AC 615, 698, in the context of a discussion about expert witnesses, that a witness owes no duty of care to anyone in respect of the evidence he gives to the court, as his only duty is to speak the truth. This may be true of witnesses generally, but it is plain that the paid expert owes duties to the client by whom he is being paid. If he agrees for a reward to prepare a report and to present himself in court to give evidence, he is obliged to do those things and to take reasonable care when he is doing so. He must make the necessary investigations and preparations for the giving of that evidence. Nevertheless when it comes to the content of that evidence his overriding duty is to the court, not to the party for whom he appears. His duty is to give his own unbiased opinion on matters within his expertise. It is on that basis that he must be assumed to have agreed to act for his client. It would be contrary to the public interest for him to undertake to confine himself to making points that were in the clients interest only and to refrain from saying anything to the court to which his client might take objection. Do these considerations reduce, or remove, the need in the case of the expert witness for the protection of the immunity? As Justice Stevens observed in Briscoe v LaHue (1983) 460 US 325, 335 336, when a police officer appears as a witness he may reasonably be viewed as acting like any other witness sworn to tell the truth. He may be regarded as an official performing a critical role in the judicial process, in which event he may seek the benefit afforded to other participants in the same proceeding. At p 345 he recognised that the absolute witness immunity bars a path to recovery by defendants who have been convicted on the basis of false testimony: But we have recognised, again and again, that in some situations, the alternative of limiting the officials immunity would disserve the broader public interest. There would seem then, as a starting point, to be a strong case for treating an expert in the same way as any other witness when it comes to the giving of sworn evidence in court. If that is so, the case would seem to be just as strong for treating him in the same way when, on the directions of the court, he is agreeing a joint statement with the opposing expert and for treating him in the same way when he is preparing his own report with a view to giving his evidence. Lord Phillips does not see why an expert should be concerned that performance of his duty to the court will result in his being sued for breach of duty to his client: para 56. But this assumption contradicts the justification for the immunity that is extended to witnesses generally, which is that there are grounds from time to time for believing that the fear of suit exists. If he is right, there are seeds here for challenging the whole concept of witness immunity. Pros and cons Various arguments have been advanced in favour of removing the immunity from expert witnesses and for not doing so. I shall deal first with those that have been advanced for removing it. Where there is a wrong there must be a remedy. This may be a valuable guide in the right context. Lord Wilberforce said in Saif Ali v Sidney Mitchell & Co [1980] AC 198, 214 that account had to be taken of this principle in fixing the boundary of the advocates immunity, which until then was unclear. But we are not dealing with fringe issues in this case, and in the present context it seems to me that little weight can be attached to it. Removal of the immunity runs counter to long established authority. The question whether it was more important to right wrongs was considered and rejected by Lord Penzance in the House of Lords in Dawkins v Lord Rokeby (1875) LR 7 HL 744: see para 133, above. It was considered again and rejected by Lord President Inglis in Williamson v Umphray and Robertson (1890) 17 R 905, by Fry LJ in Munster v Lamb (1883) 11 QBD 588 and by the Lord Chancellor in Watson v MEwan [1905] AC 480. Nothing that has been said in any of the later authorities casts doubt on the policy choice that was made in these early cases. Lord Hoffmanns declaration in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 that the policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not, is a restatement of exactly the same point. Lord Wilberforces view in Saif Ali was that this consideration showed that the area of the immunity must be cautiously defined. By that I think he meant that the immunity should not be extended any further than necessary. That test can be applied without too much difficulty when one is setting limits to the context in which things said or done will attract the immunity. It will then follow that the protection will extend to all claims of whatever nature that fall within that context. Those which fall outside it of whatever nature will not have that protection. It is more difficult to apply the idea that where there is a wrong there must be a remedy to include some wrongs within the scope of the immunity and exclude others that fall within the same context. If it is necessary to give the protection against some claims to enable witnesses to speak freely, why should it not be given to them all? Why should a claim for a breach of duty be treated differently from a claim for defamation? If the claim is well founded, a wrong was done in either case which ought to be remedied. Any immunity has to be justified. This too is a sound argument in the right context. But in this case we are dealing with a long established principle which extends the immunity to everyone who gives evidence to the court. Any extension of that principle would, of course, have to be justified. That was the problem that was faced up to and answered in Watson v MEwan [1905] AC 480 and more recently in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. But in this case we are being asked to make an exception to it. We are being asked to remove the immunity for a category of witness which until now has been given the benefit of it. Watson v MEwan [1905] AC 480 is a case in point as, of course, is Stanton v Callaghan [2000] QB 75. It seems to me to be that it is the proposed exception to the rule, not the rule itself, that needs to be justified. Analogy with the removal of the immunity from advocates. It was said that, as the decision in Arthur J S Hall & Co v Simons [2002] 1 AC 615 that the advocates immunity from liability for a breach of duty to his client had not given rise to any problems, the assumption could be made that the same could be said for the removal of the immunity from experts. I am not convinced that this is so. The witness and the advocate perform different functions. The duties that the advocate owes to the court are not as far reaching as the overriding duty to the court that rests on the expert. His principal duty is to his client, not to the court. Lord Phillips makes another point: see paras 46 50. He says that the expert witness can be compared with the advocate, as both undertake a duty to their client. In that respect he has much more in common with the advocate than he does with the witness of fact. Lord Dyson addresses the same issue when he is discussing the problem of divided loyalties: para 120. His conclusion is that the fact that the experts overriding duty is to the court is no more compelling for retaining the immunity for experts than it was for retaining it for advocates. These observations use the fact that the immunity has been withdrawn from the one as an argument for withdrawing it from the other. I find this disturbing. I do not think that anyone who sat in Arthur J S Hall & Co v Simons foresaw that removing the immunity from advocates would be taken as an indication that it should be removed from expert witnesses too. Lord Hoffmanns remarks indicate that, rightly or wrongly, he saw no such analogy. Only Lord Hobhouse disagreed with him. Yet here we are a decade later contemplating taking just that step. There is a warning here, to repeat the old adage, that one thing leads to another. Removing just one brick from the wall that sustains the witness immunity may have unforeseen consequences. Wasted costs orders and disciplinary proceedings against experts. It was also said that, as it was now clear that an expert witness was not immune from the sanction of compensating by a wasted costs order those who had suffered by evidence given recklessly in flagrant disregard of his duties to the court, and that he was not immune from disciplinary proceedings for professional misconduct at the instance of the professional body to which he belongs, a sufficient inroad had been made into his immunity for it to be but a short step for it to be removed as regards his duties to his client too. The suggestion was that the protection of the immunity had been significantly eroded by these developments. I am not convinced by this argument either. The decisions in Phillips v Symes (No 2) [2004] EWHC 2330 (Ch), [2005] 1 WLR 2043 and Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462 are not inconsistent with the continued existence of the general immunity. But there is a more fundamental point. It is one thing to be liable to a wasted costs order at the instance of the court itself or to proceedings by a professional body for professional misconduct. It is quite another to be at risk of worthless but possibly embarrassing and time consuming proceedings by a disgruntled and disaffected litigant in person. Insurance cover, if available, is not a universal remedy. And here again one must be careful not to lose sight of the policy choice that was made long ago that, to be effective, the immunity must be for the protection of all, not just those who might otherwise be liable. Experts can look after themselves. Some experts may be robust enough to withstand the risks and in most cases, no doubt, the risks they face will be minimal. But one cannot assume that this will be so for everyone. And it is not the robustness of the witness that is the problem. It is the risk of the expense and distress of a harassing litigation at the instance of an aggressive client which in some cases, given the vagaries of human nature, may be quite obvious. Lord Penzance thought in Dawkins v Lord Rokeby (1875) LR 7 HL 744 that, with such possibilities hanging over his head, a witness could not be expected to speak with that free and open mind which the administration of justice demands. I would find it hard to say that he misdirected himself on this point or that what he said then does not still hold true today, even in the case of experts who regularly give evidence but certainly in respect of those who do not. As against those points, there are various arguments that have been put forward in support of retaining the immunity for expert witnesses. Chilling effect on the availability of witnesses. Mr Lawrence QC for the respondent said that it was a relevant consideration whether abolition of the immunity would deter a significant number of potential experts from giving evidence. Otton LJ made this point in Stanton v Callaghan [2000] QB 75, 106 and Thorpe LJ raised the same concern in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, para 227. I would not, on present information, attach much importance to this argument. In any event, without hard information, it is not possible to assess how much weight should be given to it. Experts can usually expect to be paid for their work, and there are no doubt other considerations that will incline them to continue to make themselves available. I would not, however, discard this point as entirely irrelevant. There may be some situations some kind of case, some kinds of client where the expert would be reluctant to become involved at all. If that were to happen it would raise questions as to whether access to justice for the disadvantaged was being inhibited. This is a reason for wishing to be cautious before taking a step which, for all practical purposes, would be irretrievable. Fuzzy edges: where to draw the dividing line. This is a much more important point. Although Mr Ter Haar was careful to confine his submissions to civil cases and to the relationship between the expert and his own client only, it is hard to see how one could justify removing the immunity in that respect but keeping it for all the other tribunals which hear evidence for experts. This would be a matter of particular concern in the criminal jurisdiction. The expert for the prosecution would continue to enjoy the immunity from proceedings at the instance of the defendant. The expert for the defence would have it removed from him. One cannot discount the fact that exposure to the risk of incurring the expense and distress of a harassing litigation at the clients instance should the defence fail, however unlikely, will colour his evidence. The public interest surely demands that experts who give evidence on either side in criminal proceedings are free from pressures of that kind. The same point could be made where proceedings are brought for the protection of children, where the interests of the child must be the paramount consideration and it is undesirable that anything should be done that might discourage the expert from giving full and frank evidence. What is the basis in principle that would justify the removal in civil cases but retaining it in all the others? And what if the removal is to be extended to family proceedings and public law proceedings where children are involved? Lady Hales compelling treatment of this subject in paras 182 and 183 of her judgment illustrates the problems. It would be unwise to leave the position outside the civil jurisdiction in a state of uncertainty. Other duties giving rise to the risk of liability. The argument in favour of removing the immunity concentrated on the duties of care that arise from the contractual relationship and, in tort, from the relationship of reliance on the services of the professional. There are however other circumstances that need to be considered that might give rise to liability from which, as matters stand, experts enjoy immunity. There is the duty of confidentiality which was the subject of the proceedings against the expert in Watson v MEwan [1905] AC 480. Is the immunity to be removed in cases of that kind too, where the expert agrees to give evidence for the other side or feels himself bound when giving evidence for his own side to reveal information which the court needs if it is to be told the truth but which his client maintains was confidential? What about the joint or the court appointed expert? And what about witnesses who, although not experts, can be said to owe duties to a party to the litigation or those who may be affected by what they say? Is the immunity to be removed from the company director who owes a duty to the company to promote its interests but is said to have made an inexcusable error when giving evidence on its behalf? What about the employee with specialist skills who gives evidence on his employers behalf and is said to have caused loss to his employer because of the negligent way he presented his evidence? How does one determine who, for the purposes of the removal of the immunity, is an expert and who is not? And how is one to identify those to whom the duty is owed? In Carnahan v Coates (1990) 71 DLR (4th) 464, 471 472 Huddart J drew attention to the fact that prima facie a professional person who gives evidence owes a duty of care towards all who might be contemplated to be harmed by his failure to conduct himself with the minimum standard of care dictated by his profession. In E OK v DK [2001] 3 IR 568 the unsuccessful party to an action of nullity of marriage sought damages against a witness whom the court had appointed to carry out a psychiatric examination of her, alleging that he had been negligent. The different ways in which Lord Phillips, Lord Brown and Lord Dyson describe the extent to which the immunity is to be removed suggest that the boundaries are, and are likely to remain, unclear. Conclusion The lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what is to be affected by the removal and what is not, the uncertainties that this would cause and the lack of reliable evidence to indicate what the effects might be suggest that the wiser course would be to leave matters as they stand. The Law Commission has recently completed a project in which it addressed the admissibility of expert evidence in criminal proceedings in England and Wales: see Law Com No 325 (HC 829, 21 March 2011). The question of immunity was not raised at any stage during its consideration of this issue. If there is a need to reform the law in this area, it would be better to leave it to be dealt with by Parliament following a further report by the Law Commission. As Watson v MEwan [1905] AC 480 remains binding in Scotland and witness immunity in Scotland is a devolved matter, the question whether it is in need of reform deserves attention by the Scottish Law Commission as soon as practicable. In this way all the various problems could be addressed after proper consultation and debate. For these reasons, and for those given by Lady Hale, I would dismiss the appeal. LADY HALE On 26 July 1966, the Lord Chancellor made the following statement, Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, on behalf of himself and the Lords of Appeal in Ordinary: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In Austin v Southwark London Borough Council [2010] UKSC 28, [2010] 3 WLR 144, at para 25, Lord Hope (with whom all other members of the court agreed) stated that this has as much effect in this court as it did before. However, this case illustrates how hard it is to apply that wise guidance in practice. Lord Hope has demonstrated, to my mind convincingly, that there is House of Lords authority, in the shape of Watson v MEwan [1905] AC 480, for the general proposition that no cause of action of any kind lies against any witness in respect of the evidence he gives to a court. The rule was first developed as a protection against suits in defamation, but there is no reason in principle to limit it to these. If the purpose is to ensure that witnesses can prepare and give their evidence freely to the court, irrespective of whether it might otherwise constitute a tort or a breach of contract against someone else, then it should not matter what the source of that liability might be: whether saying or writing something which is defamatory of someone else; or saying or writing something in breach of a duty of confidence owed to someone else; or saying or writing something in breach of a contractual duty owed to someone else; or saying or writing something in breach of what would otherwise be a tortious duty owed to someone else. The rule has been taken for granted by courts at all levels for a very long time. I therefore agree with Lord Hope that we are here concerned with whether we should carve out an exception to that long established rule. There are, of course, existing exceptions. The most important is perjury, but among the others are contempt of court, professional misconduct (assuming Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462 to be correctly decided), and liability for the wasted costs of the other side (assuming Phillips v Symes (No 2) [2004] EWHC 2330 (Ch), [2005] 1 WLR 2043 to be correctly decided). It has been suggested that these exceptions, and in particular the last two, make such inroads into the rule that they call its whole purpose into question. In my view they do no such thing. These exceptions are all, in their different ways, in support of the courts interest in witnesses behaving properly: telling the truth, obeying court orders or respecting the undertakings given to the court, behaving professionally so as to justify the courts confidence in their expertise and not wasting the time of the court or the other parties. In short, they are there to encourage, indeed to oblige, the witness to perform her duty to the court. They are not there to protect the interests of the witnesss client. The exception which we are being asked to make is to protect the interests of the client. That is a significant departure from existing principles. The rule may have been established before certain developments in law and practice in particular the modern evolution of the law of negligence and the practice of paying expert witnesses to give their opinions in civil or criminal cases. But these are not new developments in the way that, for example, email and the internet are new developments which the existing law must find ways of accommodating. A professional person has always owed her client a contractual duty to exercise reasonable care and skill: its statutory recognition in the Supply of Goods and Services Act 1982 was not intended to change the law. It has never, so far as I am aware, been contrary to public policy for a party to litigation to pay an expert for her advice in connection with the litigation. The development is one of quantity not quality. If an exception is to be made, the boundaries of that exception must be logical and clear. As I understand it, there is no question of removing the absolute privilege which all witnesses enjoy against defamation, whether or not the person defamed is their client. As I also understand it, there is no question of erecting a duty of care where none would otherwise exist, and thus of rendering an expert witness liable to the other side or to anyone else involved in the litigation apart from her own client. The rationale for the proposed exception is that, without the rule, an expert witness would owe a duty of care to her own client and there is no reason why she should not be liable if she has caused her client loss through the breach of that duty. I am unclear whether the exception would apply only in a case where there was a contractual duty or whether it would apply in a case where there was no contractual duty but there might be a duty owed in tort. Or is it to be assumed that the two are co terminous? I doubt that because there may be situations where there is no contractual duty, for example because the contract was made with the partys legal advisers, but where there could be a duty in tort were it not for witness immunity. I ask these questions because, as it seems to me, it would be impossible to confine any exception to run of the mill cases like the present. The present case is a classic personal injury action. The claimant was injured in a road traffic accident. There is a variety of medical evidence available. Some of it comes from the doctors who have been treating him for his injuries. Some of it comes from doctors, and in this case a clinical psychologist, who have been instructed by one side or the other to give their expert opinion purely for the purpose of the litigation. These last are the paradigm case on which the rationale for the proposed exception is based. They have been called in to give their opinion for the purpose of the litigation. They are paid a fee for doing so. They would ordinarily owe a contractual duty to exercise reasonable care and skill, either directly to the client or through the clients legal advisers. Why should they not be held liable to the client if they fail to exercise that care and skill? After all, as professionals, they will only fail in their duty if they fail the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582); and as witnesses, they will be excused much in the hurly burly of the trial. These are powerful arguments indeed in the context in which they are deployed. Mr Ter Haar QC, for the appellant claimant, was at pains to exclude consideration of the liability of expert witnesses in other contexts. But I do not think that we can exclude it. If we are to change the law, we must do so in a principled way. If the exception is made, it will clearly have to apply between expert witnesses and their clients in all kinds of civil proceedings, before all kinds of courts and tribunals: the surveyor who gives valuation evidence in a leasehold enfranchisement case; the plasterer who gives quantum meruit evidence in a building dispute; the engineer who explains how a machine works in a factory accident; or the scientist who explains how DNA works in a patent case. All of this may sound straightforward. But even in ordinary civil cases, it is not completely so. A doctor who has treated the patient after an accident or for an industrial disease may be called upon, not only to give evidence of what happened at the time, but also to give an opinion as to the future. Sometimes there may be a fee involved and sometimes not. Is the proposed exception to cover all or only some of her evidence? In many civil cases, there are commonly now jointly instructed experts on some issues. A jointly instructed expert owes contractual duties to each of the parties who instruct her. A party who is disappointed by her evidence will often find it difficult to persuade the court to allow a further expert to be instructed to enable her evidence to be properly tested. But the disappointed party does not have to ask the courts permission to find an expert who will enable him to launch proceedings against the jointly instructed expert. Because such an expert is extremely likely to disappoint one of those instructing her, she may be more vulnerable to such actions than is the expert instructed by one party alone. How far beyond ordinary civil proceedings is this exception to go? I have already suggested that it would have to apply to essentially private law proceedings in tribunals as well as in courts thus to proceedings between landlord and tenant in leasehold valuation, service charge, rent assessment and other such disputes; or between employer and employee in unfair dismissal, redundancy, discrimination and breach of contract cases. But what about cases which are essentially public law proceedings? Should the independent psychiatrist who is instructed on behalf of the patient in tribunal proceedings under the Mental Health Act 1983 be covered by the proposed exception? Should the educational psychologist or child psychiatrist instructed by the parents of a child with special educational needs to give evidence in tribunal proceedings under Part 4 of the Education Act 1996? These are sensitive and often highly fraught cases in which performing the experts duty to the tribunal may well be perceived by the client patient or parent as a breach of her duty towards him. This brings me to family proceedings, in which all of these various situations can arise. The most obvious analogy with an ordinary civil case is ancillary relief proceedings between husband and wife. Expert valuation or forensic accountancy evidence is common. If such experts may be held liable to their clients in other civil proceedings, it is hard to see why they should not be so liable in ancillary relief proceedings. The next example is proceedings between mother and father (or other relatives) about the future of their children. Often, the court will be assisted by a welfare report from a Cafcass officer. That officer is not instructed by either party and so will presumably run no risk of liability to either of them. But sometimes the parties will jointly instruct a child psychiatrist or psychologist to assist the court. Is such an expert to be potentially liable to the disappointed parent even though it is generally accepted that her principal duty is owed, not to the parents, but to the child? And sometimes, even in these private law disputes, the child will be separately represented. Such cases are so difficult and sensitive that it is quite likely that an expert will be instructed on behalf of the child. Is such an expert to be potentially liable to the child? Then there are public law proceedings between a local authority, the child and the parents. There will often be a great deal of expert evidence. Some of the evidence will come from social workers employed or instructed by the local authority. Some of these will be simple witnesses of fact. Some will have carried out expert risk assessments. Many will do both. Are they to be potentially liable to the local authority in respect of all or only some of their evidence? Some of the evidence will come from doctors, nurses and other health care professionals who have treated or looked after the child at critical times. They may be called as witnesses by any party to the proceedings but are usually called by the local authority. I do not know, but it may be that they are sometimes paid a fee for giving an expert opinion to the court. Are they to be potentially liable to whoever called them as witnesses in respect of all or only some of their evidence? Some of the evidence will come from health care professionals who have not treated the child, but have been called in to make an assessment for the purpose of potential or actual care proceedings. They may be instructed by the local authority, the parents or the childs guardian. Are they to be potentially liable to whoever instructed them? Should any of this depend upon whether the expert is paid a fee specifically for her appearance in court, or provides her assessment as part of her ordinary duties to the health or social care services, who may not be party to the proceedings, or provides it as part of a special arrangement between the agencies? In M (A Minor) v Newham London Borough Council [1995] 2 AC 633, 661, Sir Thomas Bingham MR (with whom Staughton LJ agreed) held that a psychiatrist who interviewed a child in the course of investigating suspected child sexual abuse was not covered by witness immunity: she must have known that if she concluded that the child had been abused by someone living in the household, proceedings to remove the child were likely, but she had never in fact become involved in proceedings about the child. When the case went to the House of Lords, as one of those reported as X v Bedfordshire County Council [1995] 2 AC 633, at pp 754 755, Lord Browne Wilkinson pointed out that this was factually incorrect: the psychiatrist had made a report which was relied upon in the proceedings. He also concluded that there should be no liability for investigations which had such an immediate link with possible proceedings. But this was in the context of the case as a whole, where it was held that there was no duty of care owed to a child by the professionals involved in deciding whether or not to institute proceedings to protect him from abuse. In D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558, the Court of Appeal held that both doctors and social workers did owe a duty of care to the child when conducting child protection investigations. Discussing the impact of witness immunity, at paras 113 117, Lord Phillips of Worth Matravers MR compared the approach of Lord Browne Wilkinson in X v Bedfordshire with the more detailed consideration of witness immunity in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435. There Lord Hope had said, at p 448: The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by [police officers] when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. Lord Phillips went on to say that it may not be easy to draw the line between investigation and preparation of evidence in cases of suspected child abuse but the Court clearly held that that was where the line should be drawn. To that extent, therefore, the view taken in X v Bedfordshire has been superseded by later authority. There was no appeal to the House of Lords against that aspect of the decision of the Court of Appeal in D v East Berkshire NHS Trust. There may, therefore, be a relatively clear dividing line between conducting the examinations and investigations, on the one hand, and preparing for and giving evidence, on the other. But what these examples also make clear is that in many family cases, if the law is to be changed, there will be some professional witnesses who enjoy immunity in respect of their evidence and some who do not. Some of those distinctions will appear arbitrary. Whereas in the past, all enjoyed the same immunity, in the future only some will do so. This will introduce a dimension to the interactions between the experts, and between the experts and the courts, which was not there before. To what extent will the court, in evaluating an experts evidence, take account of that experts potential liability to a client or the lack of it? These demarcation problems might have to be suffered if it were clear that the benefits of making the exception outweighed the risks. But it is impossible to say what effect the removal of immunity will have, either on the care with which the experts give their evidence, or upon their willingness to do so. It is certainly possible that it will reduce any tendency to act as a hired gun and that would be a very good thing; but it is also possible that it will increase the pressure on an expert to stick to her previous opinion for fear of being sued if she retracts or modifies it. It is possible that it will have no effect at all upon the willingness of experts to give evidence; it is also possible that, in certain fields at least, it will reduce their willingness to do so, or even to become involved in the particular field of practice at all. It is possible that professional indemnity insurance premiums will rise and that fees for giving expert evidence will also rise to take account of this; it is possible that exclusion clauses may be introduced into contracts to give expert evidence, in which case we shall be back where we started. The major concern, however, is not about the effect of making the exception upon expert witnesses. If they are truly expert professionals, they should not allow any of this to affect their behaviour. The major concern is about the effect upon disappointed litigants. I agree with Lord Hope that the object of the rule is to protect all witnesses, the great majority of whom are trying to do a professional job and are well aware of their duties to the court, against the understandable but usually unjustifiable desire of a disappointed litigant to blame someone else for his lack of success in court. For these reasons, it does not seem to me self evident that the policy considerations in favour of making this exception to the rule are so strong that this Court should depart from previous authority in order to make it. To my mind, it is irresponsible to make such a change on an experimental basis. This seems to me self evidently a topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by this Court. |
These proceedings arise out of a fatal accident in Germany. On 21 May 2004, Major Christopher Cox, an officer serving with H.M. Forces in Germany, was riding his bicycle on the verge of a road near his base when a car left the road and hit him, causing injuries from which he died. The driver was Mr Gunther Kretschmer, a German national resident and domiciled in Germany. He was insured by the respondent, a German insurance company, under a contract governed by German law. The appellant, Major Coxs widow Katerina, was living with him in Germany at the time of the accident. After the accident, she returned to England where she has at all relevant times been domiciled. Since then, she has entered into a new relationship and has had two children with her new partner. It is common ground that the liabilities of Mr Kretschmer and his insurer are governed by German law. It is also common ground that under paragraph 3(1) of the Pflichtversicherungsgesetz, Mrs Cox had a direct right of action against Mr Kretschmers insurer for such loss as she would have been entitled to recover from him. That being so, the combined effect of articles 9 and 11 of Regulation EC 44/2001 is that she is entitled to sue the insurer in the courts of the member state where she is domiciled. She has availed herself of that right by suing the insurers in England for bereavement and loss of dependency. Liability is not in dispute, but there is a number of issues relating to damages. Their resolution depends on whether they are governed by German or English law, and if by English law, whether by the provisions of the Fatal Accidents Act 1976 or on some other basis. Mrs Cox relies on both English and German law. The question which law applies was ordered to be tried as a preliminary issue, together with other issues which are no longer in dispute. German and English law In German law, the extent of Mrs Coxs recoverable loss is governed by section 844 of the Brgerliches Gezetzbuch (or BGB). Section 844(2) provides, so far as relevant: If the person killed, at the time of the injury, stood in a relationship to a third party on the basis of which he was obliged or might become obliged by operation of law to provide maintenance for that person and if the third party has as a result of the death been deprived of his right to maintenance, then the person liable in damages must give the third party damages by payment of an annuity to the extent that the person killed would have been obliged to provide maintenance for the presumed duration of his life. Sir Christopher Holland, who decided the preliminary issues in the High Court, heard expert evidence about the effect of section 844(2) and made a number of findings: [2011] EWHC 2806 (QB). These findings have not themselves been appealed, and provide the point of departure for the questions before us. In summary, Sir Christopher held that the object of section 844 of the BGB was to restore the claimant to the financial position that she would have been in as a dependant of the deceased, but for his death, taking account of any subsequent benefits received which impact on the loss of dependancy, apart from insurance recoveries. These subsequent benefits may include the income that the claimant has made or would be likely to make by taking paid employment, together with any maintenance accruing to the claimant through her remarriage or through some other relationship following the birth of a child. Fundamental to the foregoing, he found, at para 17, is a substantive requirement of German law: the duty to mitigate, such justifying ongoing reference to her earning capacity and to benefits accruing from remarriage or from a similar relationship. Broadly speaking, German law on the damages recoverable for a fatal accident corresponds to the general principles applied at common law to the recoverability of damages in tort, which require the claimant to be put into a financial position equivalent to that which she would have been in but for the wrong. To that end, account must be taken of avoided or reasonably avoidable loss. In England, however, the law relating to liability for fatal accidents is almost entirely statutory. Before 1846, English law did not permit actions in tort for the death of a human being. This was the combined result of two rules of common law. The first was that the right of action of a person who had been tortiously injured was a personal action, which did not survive for the benefit of his estate upon his death. This rule survived until 1934, when it was abolished by the Law Reform (Miscellaneous Provisions) Act. The second rule was that [i]n a civil court, the death of a human being could not be complained of as an injury by dependants claiming in their own right: Baker v Bolton (1808) 1 Camp 493 (Lord Ellenborough). This is still the rule at common law, but it was largely superseded by the Fatal Accidents Act 1846 (Lord Campbells Act), which created a new statutory cause of action in favour of certain categories of dependant, including widows. The 1846 Act was repeatedly amended, elaborated and re enacted, and the statutory cause of action is now contained in section 1(1) and (2) of the Fatal Accidents Act 1976. These statutory provisions remain the sole legal basis on which a claim can be made for bereavement or loss of dependency in English law. The common law background explains the rather tortured form of sections 1(1) and (2) of the Fatal Accidents Act 1976. They provide: Right of action for wrongful act causing death (1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured. (2) Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person (the deceased) whose death has been so caused. For this purpose a dependant means someone falling within the categories defined in section 1(3), including the widow (or widower) of the deceased (section 1(3)(a)), a civil partner (section 1(3)(aa)), or a person who for at least two years before the death had been living with the deceased in the same household as the deceaseds spouse or civil partner (section 1(3)(b)). Lord Campbells Act contained no provisions relating to damages, but over the years such provisions have been added in the course of successive amendments and re enactments. In particular, substantial changes were made in 1976 and 1982. For present purposes, the relevant provisions relating to pecuniary loss are sections 3 and 4 of the Act of 1976, as amended by the Administration of Justice Act 1982. They provide: 3. Assessment of damages. (1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively. (3) In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re marriage of the widow or her prospects of re marriage. 4. Assessment of damages: disregard of benefits. In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded. Turning to non pecuniary loss, section 1A of the Fatal Accidents Act provides that an action under section 1(1) may consist of or include a claim for damages for bereavement by certain categories of dependent defined by section 1A(2), including a widow. Damages for bereavement are expressly excluded from the general rule of damages in section 3(1). This is because they are awarded as a lump sum, effectively a solatium, fixed by section 1A(2) and (5). These provisions are said to reflect a principle that the extent of any dependency is fixed at the moment of the death, and that anything which might otherwise be thought to affect it afterwards is legally irrelevant. For my part I would rather leave open the question whether that is a correct or helpful analysis of the Act. What is clear is that sections 3 and 4 mark a departure from the ordinary principles of assessment in English law, which can fairly be described as anomalous. They provide for what Lord Diplock in Cookson v Knowles [1979] AC 556, 568, called an artificial and conjectural exercise whose purpose is no longer to put dependants, particularly widows, in the same economic position as they would have been in had their late husband lived. Others have gone further. Atiyahs Accidents, Compensation and the Law, 8th ed (2013), described damages for bereavement as highly objectionable (p 89) and the exclusion of maintenance from a subsequent remarriage as one of the most irrational pieces of law reform ever passed by Parliament (p 133). There are two relevant respects in which an award under the Fatal Accidents Act may differ from an award under the BGB: (1) Damages awarded to a widow under the BGB will take account of any legal right to maintenance by virtue of a subsequent remarriage or a subsequent non marital relationship following the birth of a child. Section 3(3) of the Fatal Accidents Act expressly excludes remarriage or the prospect of remarriage as a relevant consideration in English law. (2) Section 844 of the BGB confers no right to a solatium for bereavement. Under section 823 of the BGB the widow may in principle be entitled to compensation for her own pain and suffering, but this would require proof of suffering going beyond normal grief and amounting to a psychological disturbance comparable to physical injury. Choice of law: the legal framework English rules of private international law distinguish between questions of procedure, governed by the law of the forum, and questions of substance, governed by the lex causae. The issue in the present case is whether Mrs Cox is entitled to rely on the provisions of sections 3 and 4 of the Fatal Accidents Act 1976. They provide for a measure of damages substantially more favourable to her than the corresponding provisions of German law, mainly because of the more favourable rule concerning the deduction of maintenance from her current partner. This issue depends on whether the damages rules in sections 1A and 3 of the Fatal Accidents Act fall to be applied (i) on ordinary principles of private international law as procedural rules of the forum, or (ii) as rules applicable irrespective of the ordinary principles of private international law. Procedure or substance? The Private International Law (Miscellaneous Provisions) Act 1995 partially codifies the law relating to the choice of law in tort. Sections 9 to 15 of that Act apply to determine the law applicable to causes of action in tort in all cases which are not governed by the Rome II Regulation EC 864/2007. Major Coxs death having occurred before the Regulation came into force, any cause of action arising out of it is governed by those provisions. The combined effect of sections 9, 11(2)(a) and 12 of the Act is that issues arising on a cause of action in respect of personal injury are to be determined according to the law of the place where Major Cox was when he suffered the injury, i.e. Germany, unless that law is displaced on the ground that the tort has substantially more significant connections with England. These rules are, however, subject to section 14(3)(b), which provides that nothing in Part III affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum. The effect of the proviso is to preserve the distinction between substance and procedure. The leading case is the decision of the House of Lords in Harding v Wealands [2006] 2 AC 1. The appeal arose out of an action in England for personal injury caused by a road accident in New South Wales. Under New South Wales law, damages were limited by the Chapter V of the Motor Accidents Compensation Act 1999 (known as the MACA). Section 123 of the MACA provided that [a] court cannot award damages to a person in a respect of a motor accident contrary to this Chapter. The Chapter then provided for a fixed limit to the damages and a number of detailed rules for awarding them. These included an exclusion of the first five days of earning capacity, an exclusion of economic loss, a specified discount rate to be used to calculate lump sum awards, and a rule requiring credit to be given for payments received from an insurer. The House rejected the view that in section 14(3)(b) of the Act of 1995, questions of procedure referred only to rules governing the manner in which proceedings were to be conducted. They distinguished between questions of recoverability (substantive) and questions of assessment (procedural). At common law the kinds of damage recoverable was a question of substance, whereas their quantification or assessment went to the availability and extent of the remedy and as such were questions of procedure for the law of the forum. The House classified all the relevant provisions of the MACA as rules of procedure. They were accordingly inapplicable to litigation in England. The leading speech was delivered by Lord Hoffmann, with whom the rest of the House agreed. Lord Hoffmann stated the principle at para 24 as follows: In applying this distinction to actions in tort, the courts have distinguished between the kind of damage which constitutes an actionable injury and the assessment of compensation (ie damages) for the injury which has been held to be actionable. The identification of actionable damage is an integral part of the rules which determine liability. As I have previously had occasion to say, it makes no sense simply to say that someone is liable in tort. He must be liable for something and the rules which determine what he is liable for are inseparable from the rules which determine the conduct which gives rise to liability. Thus the rules which exclude damage from the scope of liability on the grounds that it does not fall within the ambit of the liability rule or does not have the prescribed causal connection with the wrongful act, or which require that the damage should have been reasonably foreseeable, are all rules which determine whether there is liability for the damage in question. On the other hand, whether the claimant is awarded money damages (and if so, how much) or, for example, restitution in kind, is a question of remedy. This reflected the test previously stated by the majority of the House of Lords in Boys v Chaplin [1971] AC 356. Lord Hoffmann, following the decision of the High Court of Australia in Stevens v Head (1993) 176 CLR 433, characterised all the relevant provisions of the MACA as procedural. This seems surprising as regards some of them, such as the exclusion of economic loss, which would appear to be substantive according to Lord Hoffmanns test. This may be why in their concurring judgments Lord Woolf and Lord Rodger of Earlsferry justified this classification not only on the grounds given by Lord Hoffmann but on additional grounds. Lord Woolf at para 11 considered that because the greater part of the provisions of the MACA relating to damages were procedural, the rest which were arguably substantive should be regarded as procedural also. Lord Bingham and Lord Carswell agreed with Lord Rodger as well as Lord Hoffmann. Lord Rodger found the answer in the opening words of section 123 of the MACA. He put the point as follows at para 73: Section 122(1) of MACA explains that Chapter 5 applies to, and in respect of, an award of damages relating to death or injury in motor accidents. Section 123 provides that: A court cannot award damages to a person in respect of a motor accident contrary to this Chapter. While, of course, it may be necessary to look beneath the surface of a statutory provision to ascertain its nature, the legislature is here signalling that the provisions in Chapter 5 are directed to what a New South Wales court can award by way of damages. In other words, prima facie at least, they are concerned, not with the scope of the defendant's liability for the victims injuries as such, but with the remedy which the courts of New South Wales can give to compensate for those injuries. For purposes of private international law, prima facie they are procedural in nature. In Harding v Wealands, it was being contended that damages for a New South Wales tort should be awarded in accordance with a New South Wales statute. The present is the converse case, because what is being suggested is that damages for a German tort should be awarded in accordance with an English statute. It is therefore necessary to consider the damages rules of both laws. I consider that the relevant German damages rules are substantive. This is because they determine the scope of the liability. Sir Christopher Holland has found that the rule of German law requiring credit to be given for maintenance received from a subsequent partner, reflects the principle requiring the victim of a tort to mitigate loss and to give credit for successful mitigation. In German law this is classified as a substantive rule. Its classification in an English court is a question of English law, but English law would regard it in the same light. Questions of causation are substantive, as Lord Hoffmann pointed out in the passage which I have quoted from Harding v Wealands. Such questions include questions of mitigation, because they determine the extent of the loss for which the defendant ought fairly, reasonably or justly to be held liable. The inquiry is whether the plaintiffs harm or loss should be within the scope of the defendants liability, given the reasons why the law has recognised the cause of action in question: Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, at para 70 (Lord Nicholls of Birkenhead). The rule of German law which makes damages available for psychological distress in certain circumstances, and makes damages for bereavement as such unavailable, is also substantive. These are paradigm examples of rules governing the recoverability of particular heads of loss, the avoidance of which lies within the scope of the defendants duty. Turning to the categorisation of the relevant damages provisions of the Fatal Accidents Act, the Court of Appeal considered that they were procedural. Having arrived at this conclusion, they were much exercised by the difficulty of applying the damages rules of the Fatal Accidents Act to a cause of action under section 844 of the BGB, given the considerable differences between them; and the absence of any alternative basis for assessing damages for wrongfully causing death under English law. The majority considered that the damages rules in the Act could not be regarded as relevant to an assessment of damages for the German cause of action, because the conceptual differences between the English and German causes of action were too great. They therefore held that English law should adopt the German damages rules as its own and apply them not directly but by analogy. Dame Janet Smith dissented on the ground that in her opinion the Fatal Accidents Act applied as part of the lex fori, notwithstanding the differences between the English and German causes of action. There are certainly cases in which English law has no suitable remedy for breach of a foreign law duty. As Lord Parker CJ observed in Phrantzes v Argenti [1960] 2 QB 19, 35, to be available in support of a foreign cause of action, the remedies afforded by English law must harmonise with the right according to its nature and extent as fixed by the foreign law. But the ordinary consequence if it does not is that English law cannot give effect to the foreign cause of action at all, which was why Lord Parker declined in that case to order a father to provide the dowry to which his daughter would have been entitled under the law of Greece where the father was assumed to be domiciled. I agree with the majority of the Court of Appeal that the damages rules of the Fatal Accidents Act cannot be applied to a cause of action under section 844 of the BGB, but for an altogether simpler reason than the conceptual differences between the two laws. In my view it is unnecessary to engage in the difficult and technical task of classifying sections 1A, 3 and 4 of the Fatal Accidents Act as procedural or substantive, because these sections are irrelevant in either case. So far as they are substantive, they are irrelevant because the substantive law in this case is German law. But whether they are procedural or substantive, they do not apply under their own terms. These provisions do not lay down general rules of English law relating to the assessment of damages, even in personal injury actions, but only rules applicable to actions under the Act itself. Sections 1A, 3(3), 3(4) and 4, which include the provisions relevant to the present appeal, apply only to an action under this Act, i.e. to actions brought under section 1. The context shows that the same is true of the other provisions of section 3 (in the action). An action to enforce a liability whose applicable substantive law is German law is not an action under section 1 of the Fatal Accidents Act to which the damages provisions of the Act can apply. If the English court must apply its own rules of assessment, then what rules are these, if not those of the Fatal Accidents Act? I do not think that it is necessary to resort to analogies, because English law does provide a remedy that harmonises with the German law right, namely damages. Mr Kretschmer committed a tort under German law, and thereby incurred a substantive liability to pay financial compensation. The principal head of loss for which he was liable to compensate Major Coxs widow was the deprivation of the net financial benefit to her of her legal right to maintenance from him. This is entirely cognate with the corresponding remedy in English law. It is true, as the Court of Appeal pointed out, that because the cause of action in English law for a fatal accident is an action under section 1 of the Act, there is no non statutory measure of damages for fatal accidents. But this does not matter. If, as I consider, the particular rules of assessment in the Fatal Accidents Act do not apply as a matter of construction of the Act, then the answer must be sought in the rules of assessment which apply generally in English law in the absence of any statute displacing them. The relevant English law principle of assessment, which applies in the absence of any statute to the contrary, is that Mrs Cox must be put in the same financial position, neither better nor worse, as she would have been in if her husband had not been fatally injured. It follows that even if one assumes, for the sake of argument, that the Court of Appeal were right to regard the damages rules of the Act as procedural, in principle credit must be given for maintenance from her subsequent partner during the period since the birth of their child. This is because damages at common law are assessed on the footing that credit must be given for receipts referable to the original loss, with very limited exceptions such as insurance receipts which are not relevant in this case. The only potential difficulty concerns Mrs Coxs receipt of maintenance from her current partner during the period before they had a child, when he was under no legal obligation to maintain her either in German or in English law. It appears from Sir Christopher Hollands findings about the relevant German law that it is not just the maintenance that she would have received from Major Cox that must have been received by virtue of a legal obligation, but also the maintenance from her current partner for which she can be required to give credit. The classification of a damages rule regulating the receipts for which credit must be given in an award of damages is a difficult question which admits of no universal answer. In some cases, such a rule will be classed as part of the law of mitigation and therefore substantive. In some cases it will be regarded as a rule excluding an otherwise relevant element from a purely factual issue about quantum, which would normally be classified as procedural: see Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304, para 23, and Coupland v Arabian Gulf Oil Co [1983] 1 WLR 1136, 1149, concerning a foreign statutory rule about the deductibility of social security receipts. In the present case, the rule in question seems to me to be substantive for a reason peculiar to the nature of the German cause of action relied upon in this case. Mrs Cox is entitled as a matter of German substantive law to an award of damages for the loss of her legal right of maintenance from her late husband. German law requires credit to be given so far as she has received corresponding benefits by virtue of an alternative legal right of maintenance from someone else. This follows from the nature of the duty in German law and of the head of damages recoverable for breach of it. It is a rule of substantive law. Purely voluntary payments from someone with no legal obligation to make them cannot be regarded as an alternative to what she has lost. It follows that credit need not be given for it. It is not at all satisfactory that such significant consequences should turn on difficult and technical considerations of the kind considered in the previous paragraph. Under the law as it stood at the time of this accident, it was at least in theory possible that assessment rules of the forum could conflict with the substantive rules of the proper law. How that conflict should be resolved if it ever arose is a question on which I should prefer to express no opinion. The rational answer is that someone in Mrs Coxs position should recover in respect of a German cause of action what she would have recovered in a German court. This has now been achieved by changing the law. Section 15A of the Act of 1995 (added by amendment in 2008) applies the Rome II Regulation EC 864/2007 to causes of action arising after 11 January 2009. Article 15(c) of the Regulation applies the applicable law to the existence, the nature and the assessment of damage or the remedy claimed. Overriding effect of English law Before us, this point has enjoyed greater prominence than it had in the courts below, but I reject it as the Court of Appeal did. If my reasons for doing so are more elaborate than theirs, this is only because it has been more elaborately argued. Section 14(3)(a)(i) of the Private International Law (Miscellaneous Provisions) Act 1995 provides: Nothing in this Part. authorises the application of the law of a country outside the forum as the applicable law for determining issues arising in any claim in so far as to do so. would conflict with principles of public policy. Section 14(4) provides: This Part has effect without prejudice to the operation of any rule of law which either has effect notwithstanding the rules of private international law applicable in the particular circumstances or modifies the rules of private international law that would otherwise be so applicable. Mr Layton argued that the Fatal Accidents Act 1976 should be applied notwithstanding the ordinary rules of private international law, for two reasons. His first submission was that as a matter of construction that Act had extraterritorial effect. His second submission was that the principles enacted in Fatal Accidents Act represented mandatory rules of English law, applicable irrespective of ordinary rules of private international law. For reasons that will become apparent, I regard both submissions as raising the same issue in the circumstances of this case, and as requiring the same negative answer. Extra territorial application Whether an English statute applies extra territorially depends upon its construction. There is, however, a presumption against extra territorial application which is more or less strong depending on the subject matter. It arises from the fact that, except in relation to the acts of its own citizens abroad and certain crimes of universal jurisdiction such as torture and genocide, the exercise of extra territorial jurisdiction is contrary to ordinary principles of international law governing the jurisdiction of states. It follows, as Lord Scarman observed in Clark v Oceanic Contractors Inc [1983] 2 AC 130, 145, that unless the contrary is expressly enacted or so plainly implied that the courts must give effect to it, United Kingdom legislation is applicable only to British subjects or to foreigners who by coming to the United Kingdom, whether for a short or a long time, have made themselves subject to British jurisdiction. It is, however, important to understand what is meant when we talk of the extra territorial application of an English statute. There are two distinct questions, which are not always distinguished in the case law. The first question is what is the proper law of the relevant liability. The answer will usually depend on the extent of any connection between the facts giving rise to liability and England or English law. If the proper law of the liability is English law, no question of extra territorial application arises. In principle the exercise is no different from that which the court performs when it identifies the proper law of a non statutory tort, by reference to the connection between the facts and the various alternative systems of law. This is what Lord Hodson (at p 380) and Lord Wilberforce (at pp 390 392) did in Boys v Chaplin [1971] AC 356, when they held that liability in respect of a road accident in Malta in which only English parties were involved was governed by English law. The same basic principle has applied under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 since that Act came into force. The second question is one of extra territorial application, properly so called. It is the question posed by section 14(3)(a)(i) and 14(4) of the Private International Law (Miscellaneous Provisions) Act 1995, which had its counterpart in the common law, namely whether the choice of law arrived at in accordance with sections 11 and 12 is displaced by some mandatory rule of the forum. This is not a choice of law principle at all, but turns on the overriding rules of policy of the forum. In the present case it is common ground that the lex causae arrived at on ordinary principles of private international law is not English but German law. There is nothing in the language of the Fatal Accidents Act 1976 to suggest that its provisions were intended to apply irrespective of the choice of law derived from ordinary principles of private international law. Such an intention would therefore have to be implied. Implied extra territorial effect is certainly possible, and there are a number of examples of it. But in most if not all cases, it will arise only if (i) the terms of the legislation cannot effectually be applied or its purpose cannot effectually be achieved unless it has extra territorial effect; or (ii) the legislation gives effect to a policy so significant in the law of the forum that Parliament must be assumed to have intended that policy to apply to any one resorting to an English court regardless of the law that would otherwise apply. There is a body of case law in which the Fatal Accidents Acts have been applied to accidents outside England. In Davidsson v Hill [1901] 2 KB 606, the Fatal Accidents Act 1846 was applied to the death of a foreign seaman on a foreign ship, resulting from a collision with a British ship on the high seas. The reason was that the existence of a cause of action in favour of dependants of a person negligently killed was regarded as a universal principle which should be treated as part of the international law maritime: see Kennedy J at pp 610, 614 and Phillimore J at pp 616, 618. In The Esso Malaysia [1975] 1 QB 198, 24 Russian crewmen serving on a Latvian trawler were killed when it collided with a Panamanian tanker on the high seas. Jurisdiction was established in England by arresting a sister ship. Brandon J held, following Davidsson v Hill, that the rule which imposed liability for negligently causing a fatal injury was a universal rule of the law maritime. On that footing, the Fatal Accidents Act 1846 applied, because its effect was not to create new rules of conduct, but only to regulate the consequences of existing rules of conduct: see p 206. These cases depend, in my opinion, on (i) the existence of an international principle of liability for negligent acts, which is to be regarded as part of the law maritime, coupled with (ii) the absence of any more appropriate system of law than English law to govern the precise incidents, extent and conditions of that liability. The peculiarity of the cases about collisions in international waters lies in the absence of any relevant connection between the breach of duty and the territory of any state, or of any underlying relationship between the parties, from which some more appropriate choice of law could be derived. In Roerig v Valiant Trawlers [2002] 1 WLR 2304, sections 3 and 4 of the Fatal Accidents Act 1976 were also applied, but on a different basis. There were relevant connections with English law because the accident occurred on a British vessel with no other vessel involved, and also with Dutch law because the vessel was operating out of the Netherlands and the deceased was a Dutchman working for a Dutch company. The Dutch factors were held to be insufficiently significant to displace the lex loci delicti, which was English. These cases all, in different ways, turn on the choice of law arising from the circumstances of the case. None of them were about the extra territorial effect of any statute. Indeed, in The Esso Malaysia at p 207, Brandon J declined to consider that question. The relevant principle emerges perhaps more clearly from the case law on the application of the United Kingdoms scheme of statutory employment protection to employment with a foreign element. In Lawson v Serco Ltd [2006] ICR 250, the House of Lords heard three cases in which claims were made for unfair dismissal under section 94 of the Employment Rights Act 1996. Two of them had been brought by British nationals employed by the Ministry of Defence at overseas military bases. The third was brought by a pilot employed on international routes. His employer was a Hong Kong airline, but he was based at Heathrow airport. It was held that as a general rule the application of section 94 should depend on whether the employee was working in England when he was dismissed, but that exceptionally the Act might be applied where the employment relationship was substantially connected with the United Kingdom. This was held to be the case where a peripatetic employee was based in England, or an employee was hired in England to work in an extra territorial enclave of the United Kingdom overseas. The employee therefore succeeded in all three cases. Lord Hoffmann, with whom the rest of the House agreed, identified the relevant question at para 1: Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair? Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] ICR 1312, did not concern an extra territorial enclave of the United Kingdom. The employees were teachers employed by the Secretary of State to work in European schools abroad. But the Supreme Court treated the result in Lawson v Serco Ltd as illustrative of a broader principle that employment abroad might exceptionally have such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal. (Baroness Hale at para 16). In Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389, the employment tribunal was held to have jurisdiction to determine a claim under section 94 by an employee based in Scotland but employed for periods of 28 days at a time at oil installations in Libya. The Supreme Court, treated the result in Lawson v Serco Ltd as an example of the same broader principle. Lord Hope expressed it as follows, at para 27: the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. Like the cases about maritime torts, these cases turn on the choice of law, not on the extra territorial effect of the Employment Rights Act. The Fatal Accidents Act is an unpromising candidate for implied extra territorial effect. In the first place, the question of extra territorial application could not have been an issue at the time when the Act of 1976 and its predecessors were passed. This is because actions brought in England on a foreign tort were then subject to the double actionability rule, which was a procedural rule requiring the conduct alleged to be actionable under English law as well as by its proper law. The practical effect of the rule was not to displace the law governing the tort, but to make it pointless ever to rely on that law because the elements of the tort in English law had to be satisfied anyway. The double actionability rule had its origin in Philips v Eyre (1870) LR 6 QB 1, and was no doubt based on the tacit instinct of English judges that they should not be required to enforce values underlying the law of tort in foreign countries, which might not be acceptable in England. The Private International Law (Miscellaneous Provisions) Act of 1995 abolished the double actionability rule and introduced rules requiring English courts to apply to claims in tort the law which had the most significant connection with the wrong, subject to an altogether more limited saving for the public policy of the forum applicable only in those cases where a specific foreign law was found to be repugnant to the policy of the forum. Secondly, the whole purpose of section 1 of the Fatal Accidents Act, was to correct an anomaly in the English law of tort. There is nothing in the mischief of this legislation which requires it to be applied to fatal accidents which, being governed by foreign laws, are unlikely to exhibit the same anomaly. If there is no reason of policy to apply section 1 to foreign torts, there can be no better reason to apply sections 1A, 3 and 4, which depend on section 1. Thirdly, there is no reason whatsoever why Parliament should have intended the Fatal Accidents Act to apply to foreign fatal accidents with no connection to England or English law. Neither the terms nor the purpose of the Act depend for their effect on its having extra territorial effect. The only other basis for imputing to Parliament an intention to apply the Fatal Accidents Act internationally irrespective of ordinary rules of private international law, is that the Act, and in particular its damages rules, represent a mandatory rule. This is the expression commonly employed to describe what the Law Commissions of England and Scotland have called rules of domestic law regarded as so important that as a matter of construction or policy that they must apply in any action before a court of the forum, even where the issues are in principle governed by a foreign law selected by a foreign choice of law rule: Law Commission and Scottish Law Commission Working Paper no. 87 (1984), para. 4.5. Section 14(3)(a)(i) an 14(4) of the Private International Law (Miscellaneous Provisions) Act 1995 have the effect of saving such rules. Some foreign laws governing the availability of damages for fatal accidents may no doubt be so offensive to English legal policy that effect would not be given to them in an English court. A rule of foreign law that women or ethnic minorities should have half the damages awardable to white males similarly placed was cited as an example. But the German rules with which this case is concerned are based on a perfectly orthodox principle which is by no means unjust and is accepted in principle by English common law in every other context than statutory liability for fatal accidents. Mandatory rules It must follow from my reasons for rejecting the implied extra territorial application of the Fatal Accidents Act that Mr Laytons second submission, based on the mandatory character of the rules contained in the Fatal Accidents Act, also fails. Conclusion Since my reasons differ in some respects from those of both courts below, the declarations may require some redrafting. I would leave the exact wording to be agreed by counsel. Subject to that, I would dismiss Mrs Coxs appeal. LORD MANCE Mrs Cox claims in respect of the accident in Germany on 21 May 2004 which caused the death of her husband. The substantive law governing the relevant tort is German. But, like the claimant in Harding v Wealands [2007] 2 AC 1, Mrs Cox submits that English law more specifically the provisions of the Fatal Accidents Act 1976 (the FAA) should apply in relation to the issues of damages which arise. In the alternative, she relies on article 844 of the German Civil Code (the BGB). The relevant substantive law I agree with Lord Sumption that the principles by which damages are recoverable by Mrs Cox are those established by article 844 BGB. The decision of the Court of Appeal should be upheld, albeit by different reasoning to that which it adopted and with corresponding variation of the declarations made, as Lord Sumption indicates in para 36. I agree in particular with Lord Sumptions conclusion in paras 17 and 22 that the German rule under article 844 requiring credit to be given only for maintenance received as a matter of legal right from a subsequent partner is a rule of substantive, rather than procedural, law. The distinction between substance and procedure originated in the common law and was preserved by the Private International Law (Miscellaneous Provisions) Act 1995, which applies in this case. (The distinction has, for torts committed since 11 January 2009, been, happily, superseded by Rome II Regulation EC 864/2007, article 15(c).) The distinction was discussed, as Lord Sumption notes, in Boys v Chaplin [1971] AC 356 and Harding v Wealands [2007] 2 AC 1. It was, as Lord Rodger noted in Harding v Wealands, para 65, a distinction drawn for private international law purposes, and it had in that context a somewhat special meaning. The distinction applies in the present case when examining both the nature of the German rules under article 844 BGB and the nature of sections 3 and 4 of the FAA. For the purposes of the distinction, substance includes the identification of heads of recoverable loss, such as pain and suffering (see Boys v Chaplin itself) and loss of consortium (solatium): see MElroy v MAllister 1949 SC 110, cited in Boys v Chaplin, p 82B E, per Lord Guest, and see p 389E, per Lord Wilberforce. It further includes, as Lord Hoffmann stated in Harding v Wealands, para 24, the rules governing causation and remoteness and, as Lord Rodger accepted at para 74, traditionally also mitigation. The rules governing these matters are, as Lord Hoffmann indicated in para 24, rules which determine the scope of a defendants liability, or for what he is liable. When Lord Hoffmann referred in this connection to what he previously had occasion to say, he was clearly referring to South Australia Asset Management Sorpn v York Montague Ltd (SAAMCO) case [1996] UKHL 10, [1997] AC 191, where the House limited the scope of a surveyors liability for a negligent over valuation to such loss as flowed from the over valuation excluding, in effect, the further consequences of subsequent market fall as well as any increased risk of default. A similar description of the substantive principles on which damages fall to be awarded is found in Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883. Lord Nicholls there stated that the value judgment, concerning the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable, involves the law setting a limit to the causally connected losses for which a defendant is to be held responsible under heads such as remoteness and mitigation (para 70), and involves asking [i]n respect of what risks or damages does the law seek to afford protection by means of the particular tort (para 71). I agree with Lord Sumptions comments in para 15 on the reasoning and decision in Harding v Wealands. The House of Lords there refused in English proceedings to apply chapter 5 of the Motor Accidents Compensation Act (MACA), which would have regulated the damages recoverable had the matter been litigated in Australia. The application of the difficult distinction between substantive and procedural issues may on the facts of that case appear in some respects questionable. What is presently interesting is the acceptance by members of the House of Lords that the relevant chapter, chapter 5, contained provisions that traditionally fall on the substantive side of the line for purposes of private international law: per Lord Rodger, para 74, and see per Lord Woolf, para 11. Yet both held (paras 11 and 77), with Lords Bingham and Carswell agreeing (paras 1 and 79), that chapter 5 was a code the whole of which was to be characterised as procedural. Lord Hoffmann, with whose speech Lords Bingham and Carswell also agreed, identified in para 17 the relevant parts of chapter 5. These included a requirement that credit be given for payments made to the claimant by an insurer on its face a mitigating receipt. The most convincing explanations of the House of Lords decision that all aspects of the MACA were procedural seem to me in these circumstances either the package argument accepted by Lord Woolf (para 11) and perhaps also the argument that the MACA was a remedy intended only for use in Australian courts argument (see per Lord Rodger, para 75). Neither explanation affects the relevance or applicability of article 844 BGB as part of the relevant substantive law on the facts of this case. The Fatal Accidents Act 1976 (The FAA) Lord Sumption describes the development of English law in this area in paras 6 to 10 and the differences between an award under the FAA and under article 844 BGB in para 11. The FAA creates a new cause of action in favour of dependants (and in favour of a spouse in respect of bereavement): Seward v Vera Cruz (1884) 10 App Cas 59, 67, per Lord Selborne LC; Davidson v Hill [1901] 2 KB 606, 614. Any claim for pain, suffering or other loss suffered by the deceased before death is distinct from these new claims for loss or dependency and bereavement. This is so even though these new claims only arise where the deceased would, if death had not ensued, have had a claim for damages for any loss he or she incurred. That is a mere pre condition to the new causes of action. The Court of Appeal, as Lord Sumption notes (para 18), considered by a majority (Dame Janet Smith DBE dissenting) that a dependency claim under the FAA should be categorised as involving a different sort of action from a dependency claim under article 844, and that the FAA was irrelevant on this ground alone. That may be open to question. Classification in private international law should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing systems of law, which may have no counterpart in the others system: Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1996] 1 WLR 387, 407C, per Auld LJ, and it should, as I said in Raiffeisen Zentralbank Osterreich AG v Five Star Trading LLC [2001] QB 825, paras 26 27, be undertaken in a broad internationalist spirit. The Court of Appeal was however also of the unanimous view that the provisions of sections 3 and 4 of the FAA should under English private international law be viewed as procedural rather than substantive. In my opinion, however, it can make no difference to the outcome of this appeal whether or not the dependency claims under the FAA and German law are categorised as broadly similar or whether the provisions of sections 3 and 4 of the FAA are treated as substantive or procedural. Assuming that the dependency claims are categorised as broadly similar, the provisions of sections 3 and 4 of the FAA are, if substantive, irrelevant to a tort subject to German substantive law. If on the other hand, the provisions of sections 3 and 4 were to be treated as procedural, their application could have no effect on the outcome. This is not because I think that their impact must necessarily be confined to claims under the FAA, simply because that is their domestic context private international law may require the application of procedures developed in a purely domestic context to claims governed by foreign law. Rather it is because I do not, in this context, see any basis on which an English procedural provision could expand on a defendants liability under the substantive principles of the relevant governing law. So here an English procedural rule precluding account from being taken of re marriage or the prospects of remarriage could not override the substantive rule under article 844 BGB by which credit is required to be given for maintenance received by way of legal right from a subsequent partner. The problems arising from potential conflicts of this sort between a foreign substantive lex causae and a domestic lex fori are discussed in the context of limitation in Dicey, Morris & Collinss The Conflict of Laws 15th ed (2012), para 7 056. As proposition (ii) in that paragraph states, with reference to dicta in, inter alia, Harris v Quine (1869) LR 4 QB 653, 658: . once a substantive period of limitation of the lex causae had expired, no action could be maintained even though a procedural period of limitation imposed by the lex fori had not yet expired: in such a case there was simply no right left to be enforced. Such problems can of course be expected to, and do arise, only very infrequently. I add only that I leave open, for consideration if the need ever arises, the correctness of the dicta regarding the nature of sections 3 and 4 of the FAA to be found in Coupland v Arabian Gulf Oil Co [1983] 1 WLR 1136, 1149 and in Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304, paras 13 to 27. In Coupland the point was not argued at all, though Hodgson J asserted that it was correct to treat a Libyan law rule that social security benefits were not deductible from an award of general damages as a rule of quantification. The fuller reasoning in Roerig was unnecessary for the decision, both because Dutch law did not apply (para 12) and, as Waller LJ correctly recognised at paras 28 29, because the claim was brought under the FAA, and one cannot bring a claim under a statute without accepting its terms. Overriding effect of English law and mandatory law I agree with Lord Sumptions reasoning and conclusions on these aspects in paras 24 35 of his judgment, and have nothing to add to what he there says. |
The question at issue on this appeal is whether, under the Water Industry Act 1991, a sewerage undertaker has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents canals without the consent of their owners and, if so, whether the right extends to any sewer or only to those which were in existence in 1991 when new sewerage legislation was passed. This depends on the construction of the Water Industry Act 1991, a consolidating Act which was passed in order to tidy up the statute law relating to water and sewerage services. It consolidates with amendments the provisions of the Act of The Water Industry 1989, together with a number of other statutes concerned with water management. At the same time, the Water Consolidation (Consequential Provisions) Act 1991 repealed a number of earlier statutory provisions, including some thought to be spent and unnecessary. It is on these changes that the issues on this appeal turn. The Supreme Court unanimously allows the appeal to the extent of declaring, in accordance with the second possibility, that subject to section 117(5) of the Water Industry Act 1991, the Appellants are entitled to discharge into the Respondents canals from any sewer outfall which was in use on or before 1 December 1991. The leading judgment is given by Lord Sumption. Discharge into a private watercourse is an entry on the owners land, and as such is an unlawful trespass unless it is authorised by statute. It is common ground that no express statutory right is conferred by the Water Industry Act. The question is therefore whether it should be implied. A statutory right to commit what would otherwise be a tort may of course be implied. But since this necessarily involves an interference with the rights of others, the test has always been restrictive. The implication must be more than convenient or reasonable. It must be necessary. As a general rule, this will involve showing either that the existence of the power is necessarily implicit in the express terms of the statute, or else that the statutory purpose cannot be effectually achieved without the implication. In particular a right to commit what would otherwise be a tort may be implied if a statutory power is incapable of being exercised or a statutory duty is incapable of being performed without doing the act in question [2]. There are two bases on which a right of discharge into private watercourses might be implied into the current statutory regime. The first is that a right corresponding to the one recognised by the Court of Appeal in Durrant v Branksome Urban District Council [1897] 2 Ch 291 under earlier legislation is implied into the corresponding provision of the Water Industry Act 1991. In particular section 159 (which confers a power to lay pipes). The effect of such an implication would be to authorise discharge from future sewage outfalls as well as from those already in use when the Water Industry Act 1991 came into force. The second possibility is that the only right of discharge into private watercourses which survives under the Act of 1991 is a right of discharge from existing outfalls which were already in use on 1 December 1991 when the Act came into force [12]. The first basis must be rejected because the language and scheme of the current legislation differs significantly from that of the legislation in force at the time of Durrants Case. However, a right of discharge, limited to outfalls from sewers in existence when the Act of 1991 came into force, exists on the second basis. When the Water Industry Act 1991 (i) imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses and (ii) at the same time applied to them the statutory restrictions in section 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers. A restriction on discontinuing the use of an existing sewer until an alternative has been constructed is not consistent with an obligation to discontinue its use forthwith under the law of tort. The inescapable inference is that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived [19]. Lord Sumption rejects the suggestion that this conclusion leaves the owners of private watercourses in a worse position than under the Water Act 1989, because of the more limited provisions for compensation for damage and the more limited protections available against abuse. It does not, he considers, give rise to difficulty if a more limited right to continue discharging from existing outfalls into private watercourses is to be implied from the restrictions in section 116 on discontinuing the use of existing sewers [22]. In a concurring judgment, Lord Toulson concludes that the answers to the questions in this case are to be found within the sections of the 1991 Act. There is, in Lord Toulsons opinion, no need to go back to examine the position under the 1989 Act. There is no claim for damages for trespass during the period when the 1989 Act was in force. However, if it were necessary to do so, he would conclude that there was no trespass during that period [36]. In a further concurring judgment, Lord Neuberger identifies two questions in the appeal. The first question is whether sewerage undertakers have such a right in relation to all their sewers, irrespective of when they came into use i.e. present and future sewers. The second question, which only arises if the answer to the first question is no, is whether sewerage undertakers have such a right in relation to any of their sewers, and, if so, whether it is those which were in use immediately before (i) the transfers effected pursuant to the Water Act 1989 or (ii) the coming into force of the Water Industry Act 1991 [38]. In Lord Neubergers view the composite answer to these questions is that sewerage undertakers have the statutory right to discharge surface water and treated effluent into streams and canals (subject to payment of compensation for any damage thereby caused), but only in respect of outfalls in existence before the coming into force of the 1991 Act. He agrees with the reasons given by Lord Sumption and Lord Toulson although would place greater weight on the provisions of the earlier legislation relating to public sewers and the Interpretation Act 1978 [39]. |
Lord Walker made clear that the scope of the appeal was limited the court did not have the task of deciding whether or not the system of charging current account customers was fair, but whether the OFT could challenge the charges as being excessive in relation to the services supplied in exchange (Paragraph 3). As Lord Phillips stated, even if such a challenge was not possible, it might still be open for the OFT to assess the fairness of the charges according to other criteria (Para 61). The key issue was whether the charges constituted the price and remuneration as against the goods or services supplied in exchange within the meaning of the Regulations. The Supreme Court considered and decided a number of arguments as to whether the charges could be said to be price or remuneration under Regulation 6 (2) (b): (1) The charges were not paid in exchange for the transactions to which they related eg. honouring a cheque when the customer had insufficient funds to do so (Para 75). (2) The Court of Appeal was wrong to find that Regulation 6 (2) (b) did not apply to charges that were ancillary to the core contract between the bank and customer (Paras 38 41, 47, 78, 112). Lord Walker commented that Regulation 6 (2) (b) contained no indication that only the essential price or remuneration was relevant. In fact, any monetary price or remuneration payable under the contract would naturally fall within the language of Regulation 6 (2) (b) (Para 41). (3) The charges were not concealed default charges designed to discourage customers from becoming overdrawn on their accounts without prior arrangement (Paras 88, 114). The High Court had rejected this argument and was right to do so. (4) The charges were properly to be regarded as falling within the scope of the Regulations (Paras 43, 80, 104). They were in fact part of the price or remuneration paid by the customer in exchange for the package of services which made up a current account (Paras 47, 89). The fact that liability to pay the charges depended on specific events occurring was irrelevant to that conclusion (Paras 47, 104). Accordingly, since any assessment of the fairness of the charges, which related to their appropriateness as against the services supplied in exchange, fell within Regulation 6 (2) (b), no such assessment could take place and so the appeal would be allowed (Paras 51, 90, 92, 118, 119). Further Comments Lord Phillips also noted that in the absence of the charges the banks would not be able profitably to provide current account services without a fee (Para 88). He stated that it might be open to question whether it is fair to subsidise some customers whose accounts always remain in credit by levies on others who experienced events they did not foresee when they opened their accounts (Para 80). Lord Walker commented that ministers and Parliament had decided to transpose the directive as it stood rather than to confer the higher degree of consumer protection afforded by the national laws of some other member states. Parliament might wish to consider whether to revisit that decision (Para 52). Lord Mance endorsed this comment (Para 118). Lady Hale commented that if Lord Walkers invitation to ministers and Parliament was to be taken up, it might not be easy to find a satisfactory solution. She questioned whether the real problem was not the charging model, but the lack of competition between the banks as to the product they offered (Para 93). No The court decided that although the interpretation of the European directive which the Regulations implemented was a question of European law it was not necessary to refer the matter to the European Court of Justice (Paras 49, 91, 115, 120). |
MWB Business Exchanges Centres Ltd (MWB) operates offices in London. Rock Advertising (Rock) entered into a licence agreement with MWB to occupy office space for a fixed term of 12 months. Clause 7.6 of the agreement provided: This Licence sets out all the terms as agreed between MWB and [Rock]. No other representations or terms shall apply or form part of this Licence. All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect. Rock accumulated licence fee arrears. Rocks director, Mr Idehen, proposed a revised schedule of payments to Ms Evans, a credit controller employed by MWB. Under his proposal, certain payments would be deferred and the accumulated arrears would be spread over the remainder of the licence term. This revised schedule was worth slightly less to MWB than the original terms, because of the interest cost of deferral. A dispute arose as to whether Ms Evans had accepted Mr Idehens proposal orally. MWB subsequently locked Rock out of the premises, terminated the licence and sued for the arrears. Rock counterclaimed, seeking damages for wrongful exclusion from the premises. In the County Court the judge found that the parties had agreed orally to Mr Idehens revised schedule; but the judge held that MWB could claim the arrears without regard to that oral variation, because the oral variation did not satisfy the formal requirements of Clause 7.6. Rock appealed successfully to the Court of Appeal, which held that the oral variation had also amounted to an agreement to dispense with Clause 7.6. It followed that MWB was bound by the oral variation. MWB appealed to the Supreme Court. The issues were: (i) whether a contractual term precluding amendment of an agreement other than in writing (a No Oral Modification or NOM clause) is legally effective; (ii) whether the variation of an agreement to pay money, by substituting an obligation to pay either less money or the same money later, is supported by the necessary consideration. The Supreme Court unanimously allows the appeal. Lord Sumption gives the lead judgment, with which Lady Hale, Lord Wilson and Lord Lloyd Jones agree. Lord Briggs gives a concurring judgment. NOM clauses are common, for at least three reasons: (i) they prevent attempts, including abusive attempts, to undermine written agreements by informal means; (ii) they avoid disputes not just about whether a variation was intended but also about its exact terms; (iii) they make it easier for corporations to police their own internal rules restricting the authority to agree variations. The law of contract does not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy. NOM clauses do not frustrate or contravene any policy of the law [12]. The argument for disregarding NOM clauses is that parties cannot agree not to vary a contract orally, because such an agreement would be destroyed automatically upon oral variation. However, there are legal systems, including widely used international codes, which impose no formal requirements for the validity of contracts and which yet give effect to NOM clauses. That suggests that there is no conceptual inconsistency between a general rule permitting informally created contracts and a specific rule requiring variation to be agreed in writing. The same point may be made by reference to the treatment of entire agreement clauses, which nullify prior collateral agreements relating to the same subject matter. Where such a clause is relied on to modify what would otherwise be the effect of the agreement which contains it, the courts will routinely apply the clause according to its terms and will decline to give effect to the collateral agreement [13 14]. Parties who agree an oral variation in spite of a NOM clause do not necessarily intend to dispense with that clause. What the parties agreed was that oral variations will be invalid, not that they are forbidden. The natural inference from a failure to observe a NOM clause is not that the parties intended to dispense with it, but that they overlooked it. On the other hand, if they had it in mind, then they were courting invalidity with their eyes open [15]. The approach of the Court of Appeal overrides the parties intentions to bind themselves as to the manner in which future changes in their legal relations are to be achieved. In many cases, statute prescribes a particular form of agreement. There is no principled reason why contracting parties should not adopt the same prescriptions by agreement [9 11]. The enforcement of NOM clauses involves the risk that a party may act on the varied contract but then find itself unable to enforce it. The safeguard against injustice lies in the various doctrines of estoppel. Reliance on an estoppel would require, at the very least: (i) some words or conduct unequivocally representing that the variation was valid notwithstanding its informality and (ii) for this purpose, something more than the informal promise itself [16]. The oral variation in the present case was invalid for want of the writing and signatures required by Clause 7.6. That makes it unnecessary to deal with the issue of consideration. That area of law is probably ripe for re examination. The order of the County Court is restored [17 18]. Lord Briggs agrees that the appeal should be allowed, but his reasons differ to those of Lord Sumption. To give effect to a NOM is not to override the parties intentions; the NOM clause will remain in force until both or all parties agree to do away with it. It is conceptually impossible for the contracting parties to impose upon themselves a particular scheme, but not to be free by further agreement to vary or abandon it by any method permitted by the general law. Although various international law codes give effect to NOMs, these either (i) form part of a national law, in which case they bind parties as would an English statute, or (ii) have been chosen by the parties, in which case the parties may agree to depart from those principles. Entire agreement clauses are not a useful analogy: they do not purport to bind the parties future conduct, so do not involve the same conceptual difficulties as NOM clauses. There is a powerful analogy with negotiations subject to contract, where the parties may abandon the requirement of a formal written agreement only expressly or by necessary implication. In Lord Briggs view, a NOM clause binds the parties until they expressly (or by necessary implication) agree to do away with it. This accords with the analysis adopted in most other common law jurisdictions [25 32]. In this case, the oral variation said nothing about the NOM clause, which has not been done away with by necessary implication [24]. |
On 24 October 2007 Mr Perry, was convicted in Israel of a number of fraud offences in relation to a pension scheme that he had operated in Israel. He was given a substantial prison sentence and paid a fine of approximately 3m. The Serious Organised Crime Agency (SOCA) is now seeking to deprive Mr Perry, together with members of his family and entities associated with them, of assets obtained in connection with his criminal conduct, wherever in the world those assets may be situated. None of these persons resides in the United Kingdom. As a preliminary step, aimed at ensuring that its action to recover assets is effective, SOCA obtained a worldwide property freezing order (PFO) against Mr Perry, his wife and Leadenhall Property Limited (the PFO appellants). Before that, it had obtained a disclosure order (DO) under which notices requesting information were given to Mr Perry and his daughters (the DO appellants) by letter addressed to Mr Perrys house in London. The PFO appellants challenged the PFO on the basis that a civil recovery order could only be made in respect of property that was within the territorial jurisdiction of the court making it. The DO appellants contended that notices under the DO could not be addressed to persons who were not within the UK. In the PFO matter, the High Court ruled that the provisions of the Proceeds of Crime Act 2002 (POCA) relied on by SOCA did apply, save as to orders made in Scotland, to property outside the jurisdiction and upheld the scope of the PFO. An appeal from this decision was dismissed by the Court of Appeal on 18 May 2011. Earlier, the Court of Appeal had also upheld the validity of the notices requesting information given to the DO appellants under the DO. Appeals against the PFO and the DO notices were brought to the Supreme Court and were heard together. The Supreme Court allows both appeals: the PFO appeal by a majority (Lord Judge and Lord Clarke dissenting) and the DO appeal unanimously. Lord Phillips (with whom Lady Hale, Lord Brown, Lord Kerr and Lord Wilson agree) gives the main judgment. Lord Reed and Sir Anthony Hughes give shorter concurring judgments. Lord Judge and Lord Clarke give a joint dissenting judgment on the PFO appeal. SOCAs application was pursuant to the powers in Part 5 of POCA for the court to make a civil recovery order in respect of property which is, or represents, property obtained through criminal conduct. The applicable definition of the term property is in section 316(4) which provides that property is all property wherever situated. However, many of the provisions referring to property in POCA plainly apply only to property within the UK and the scope of the term depends on its context. Thus the definition should not have been given the weight it had carried in the courts below [14]. Although there was a presumption under principles of international law that a statute does not have extraterritorial effect, states have departed from this by agreement in the case of confiscating the proceeds of crime. POCA must be read in the light of the Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, which recognises that the courts of state A may seek to seize property in state B which is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A [18 29]. Parts 2, 3 and 4 of POCA provide for (a) the imposition of personal obligations in respect of property worldwide; (b) proprietary measures to secure and realise property within the UK and (c) requests to be made to other states to take such measures in respect of property within their territories. This represents a coherent international scheme which accords with the Strasbourg Convention and with principles of international law [31 38]. The purpose of Part 5 of POCA is to enable recovery in civil proceedings in each part of the UK of property which is or represents property obtained through unlawful conduct. The focus is on the property rather than a particular defendant. In their natural meaning, and in the absence of provisions corresponding to those for enforcement abroad in Parts 2, 3 and 4, the provisions of Part 5 apply only to property within the UK [53 56, 136]. The only anomaly with this analysis was the presence of section 286(2) POCA which purported to create a different position in Scotland from that in the rest of the UK. There was no satisfactory explanation for this and it remained an enigma [75 77] (Lord Reed thought it may have reflected a misunderstanding [152]), but it did not alter the overall conclusion that the High Court of England and Wales had no jurisdiction under Part 5 to make a recovery order in relation to property outside England and Wales. Thus the property covered by the PFO must be limited to such property, and the appellants could not be required under it to disclose all their worldwide assets [78 82]. The notices under the DO were given to persons who were, and were known by SOCA to be, outside the jurisdiction of the UK. Compliance with such orders was subject to penal sanction. It was generally contrary to international law for country A to purport to make criminal conduct in country B committed by persons who are not citizens of country A. It was therefore implicit that the power to impose positive obligations to provide information could only be exercised in respect of persons who were within the UK and the DO did not authorise the sending of notices to persons outside the UK [94, 98]. Lord Judge and Lord Clarke, dissenting on the PFO appeal, agreed that POCA was poorly drafted but held that the objective was clearly to deprive criminals of the proceeds of their crimes, whether here or abroad [160]. The expression all property wherever situated should have the same meaning in all sections in which it appeared [164]. Control mechanisms had been created in Part 5 to ensure that orders made could avoid any improper extra territorial effect or infringement of the principle of sovereignty. Recovery orders took personal effect and, in respect of foreign property, were subject to the local law [167]. |
This appeal is concerned with the process by which planning authorities review what are commonly referred to as old planning permissions for mineral working, under the Environment Act 1995 and the Town and Country Planning (Scotland) Act 1997. The review is necessary because the conditions attached to old permissions often fail to meet modern environmental needs. The legislation distinguishes between three categories of mineral sites, Phase I active, Phase II active and dormant, and lays down how the process of review is to affect each category. Dormant sites are those on which no substantial minerals development was carried out in the period from 22 February 1982 and 6 June 1995. On classification as dormant, all further mineral working is frozen until new conditions have been applied for and approved. The procedure for classification of sites is in two stages. Stage 1 involves the preparation of two lists. The first list enables Phase I active sites to be given priority. The second list relates to Phase II active sites. Stage 2 enables a person who owns the land or has an interest in minerals to apply to the planning authority to determine the conditions to which the relevant planning permission is to be subject with a right of appeal to Scottish Ministers, and provisions for compensation for some active sites. The mineral site in question is in a sparsely populated area on the edge of Strathspey. The Appellant company (Tullochgribban Mains) is the heritable proprietor of tenanted farmland in the vicinity. The First Respondent, the Highland Council (the Council) is the planning authority for the area and the Second Respondent, Breedon Aggregates Scotland Ltd (Breedon) is the proprietor of the minerals on the site and has the right to work them. Tullochgribban Mains and Breedon derive title from Lord Reidhaven, who by a disposition registered on 6 July 1967 disponed to Breedons predecessor in title all the deposits of sand and gravel and associated substances (except coal) in, on or under the land delineated in red on an annexed plan (the red land) The property included a number of rights and privileges including full right and powerto search for workand carry away the minerals. The original planning permission was granted on 12 February 1965 and was expressed in general terms as permission for the working of minerals on land at Tullochgorum, Carrbridge, in accordance with the plan(s) submitted and docquetted. It set out 11 conditions stated to be in the interests of health, safety and amenity. The original plan has been lost. The site was worked for some years, but no work has taken place for a least 20 years. The worked area (the green land) was quite small, about one sixth or seventh of the red land. In March 1997, the Council issued its first list of mineral sites. The Tullochgribban site was not included and in May 1997 an application was made for it to be included as a Phase I active site. Council decided to register it as dormant as there was inadequate evidence of working since 1982. This was communicated by the Council by letter dated 15 July 1997 which included with it a plan which identified the green land, a roughly kidney shaped area forming an island within the southern part of the red land. In 2007, by which time Breedon had acquired the mineral rights, Breedon made its application for approval of a schedule of conditions. After the application was advertised in May 2007, Tullochgribban Mains contended that it would be outside the power of the Council to approve conditions in relation to the red land, contending that when the Council revised the first list so as to include Tullochgribban Quarry, it definitively determined its extent as being limited to the green land. By an interlocutor of 10 March 2009 the Lord Ordinary (Lady Clark of Calton) dismissed Tullochgribban Mains petition. On 7 January 2011, the Inner House of the Court of Session (Lord Justice Clerk, Lord Carloway and Lady Smith) refused Tullochgribban Mains appeal against that decision. Tullochgribban Mains seeks to appeal that decision to the Supreme Court. The Supreme Court unanimously dismisses Tullochgribban Mains appeal. The Stage 1 procedure is administrative and preliminary in nature. In any event, the correspondence as a whole gives no indication that the Council was purporting to exercise a power to cut down an existing planning permission. The Court notes that, as a Scottish civil case, permission was not required to bring an appeal to the Supreme Court. Had it been required, permission would not have been given by this Court. It does not raise any point of law of general importance and the judgments below set out the position clearly and correctly. Lord Walker gives the leading judgment with which Lords Hope, Kerr, Clarke and Dyson agree. The stage 1 procedure is administrative and preliminary in nature. It involves the identification of sites and the setting of an order of priority for Stage 2. By contrast Stage 2 requires planning judgment. It is possible to imagine circumstances, such as overlapping applications, in which a planning authority might at Stage 1 find it necessary to form a provisional view as to the boundaries of a site. But such cases would be unusual and a provisional determination at Stage 1 could not have the effect of cutting down a valid existing planning permission. The correspondence as a whole, considered objectively, gives no indication that the Council was purporting to exercise a power to cut down an existing planning permission. |
A number of travellers established an unauthorised camp in Hethfelton, one of the woods managed by the Forestry Commission and owned by the Secretary of State for Environment, Food and Rural Affairs. The Secretary of State sought an order for possession in respect of Hethfelton and other specified woods (also managed by the Commission and owned by the Secretary of State) which had not yet been occupied by the defendants to the claim. The Secretary of State also sought an injunction against the same defendants restraining them from re entering Hethfelton and from entering the other woods. The Recorder before whom the claim came decided to grant an order for possession against the defendants in respect of Hethfelton, but not in respect of the other woods. The Recorder also refused to grant the injunction sought. The Court of Appeal allowed the Secretary of States appeal against the Recorders refusal to grant the order for possession in relation to the other woods and against his refusal to grant the injunction. The defendants appealed. The Supreme Court unanimously allowed the defendants appeal to the extent of setting aside the wider possession order made by the Court of Appeal. Two main questions were before the Supreme Court: (1) Whether a court could grant an order for possession in respect of distinct land not yet occupied or possessed by a defendant. (2) Whether a court should grant an injunction restraining a defendant from trespassing on other land not currently occupied by him. On the first main question, the Supreme Court unanimously agreed that a court could not make such an order. Lord Rodger considered that such an order would be inconsistent with the fundamental nature of an action for recovering land because there was nothing to recover (Para 12). Lord Neuberger, who agreed with Lord Rodger on this question, thought that it did not make sense to talk about a defendant being required to deliver up possession of land where the defendant did not occupy such land in any conceivable way, and the claimant enjoyed uninterrupted possession of it (Paras 64, 74 and 78). Lords Rodger, Walker, Neuberger and Collins all thought that the Court of Appeal in Secretary of State for the Environment, Food and Rural Affairs v Drury [2004] 1 W.L.R. 1906 had illegitimately extended the circumstances in which an order for possession could be made (Paras 5, 20, 72 and 96). Lady Hales main objection to extending an order for possession in respect of distinct land which had not actually been intruded upon was one of natural justice. According to Lady Hale, the main problem with the current form of the usual order was that it was not specifically tailored against known individuals who had already intruded upon the claimants land, were threatening to do so again, and had been given a proper opportunity to contest the order (Paras 38 and 40). On the second main question, Lord Rodger, Lady Hale and Lord Neuberger agreed that the majority in the Court of Appeal were right to grant an injunction in this case. Lord Neuberger, with whom Lord Rodger agreed on this question, noted that neither the Recorder nor the Court of Appeal had concluded that an injunction should be refused on the ground that it would not be enforced by imprisonment (because the defendants were vulnerable or had young children) or because it would have no real value (since travellers usually have few assets). The Court of Appeal had not erred in granting the injunction (Para 84). Lord Neuberger was also of the view that the failure by the Commission to comply with the Guidance on Managing Unauthorised Camping issued by the Office of the Deputy Prime Minister should not preclude the granting of an injunction to restrain travellers from trespassing on other land (Paras 87 and 91). Lady Hale thought that the more natural remedy to deal with separate land which had not yet been intruded upon was an injunction against that intrusion, and one should not be unduly hesitant in granting that (Para 39). Further comments Observations were made to the effect that there may be a need for reform of the remedies available in this area (Paras 18, 40 and 94). |
A is a former member of the Security Service, B its Director of Establishments. A wants to publish a book about his work in the Security Service. A duty of confidentiality binds A and he cannot publish material relating to the Security Service without Bs consent. B refused As application for consent to publish. As a result, A began proceedings in the High Court to challenge Bs decision. He claimed, amongst other things, that his right to freedom of expression under article 10 of the European Convention on Human Rights had been breached. B argued that section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA) provided that the Investigatory Powers Tribunal (the IPT) was the only appropriate tribunal in relation to proceedings under section 7(1)(a) of the Human Rights Act 1998 brought against the intelligence services, such that the High Court did not have jurisdiction to entertain As article 10 claim. The High Court held that it had jurisdiction to hear As challenge. The Court of Appeal, by a majority, reversed the High Courts decision, holding that exclusive jurisdiction did lie with the IPT. A appealed to the Supreme Court. Justice (an all party law reform and human rights organisation) intervened in the appeal in support of As submissions. The Supreme Court unanimously dismissed As appeal. Lord Brown, with whom all the members of the Court agreed, gave the leading judgment. Lord Hope gave a concurring opinion. Two alternative arguments were advanced by A: Section 65(2)(a) excludes the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts. Even if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a) jurisdiction on the IPT, it does so only in respect of proceedings against the intelligence services arising out of the exercise of one of the investigatory powers regulated by RIPA. As to the first argument, Lord Brown noted that the language of section 7(2) of the 1998 Act and the use of the word only before appropriate tribunal in section 65(2)(a) indicated that it was unlikely that Parliament was intending to leave it to a complainant to choose for himself whether to bring proceedings in court or before the IPT (Para 13). Whilst the IPT rules made under RIPA were restrictive (e.g. in relation to the limited disclosure of information to a complainant), there were various provisions in RIPA and the IPT rules which were designed to ensure that, even in the most sensitive cases, disputes could be properly determined. None of these provisions would be available in the courts (Para 14). A further telling consideration against As construction was that there were in fact no other tribunals with section 7(1)(a) jurisdiction over the categories of claim listed in section 65(3) of RIPA (Para 15). As to the second argument, Lord Brown considered that As submission would involve reading into section 65(3)(a) (which contains the phrase proceedings against any of the intelligence services) words which were simply not there. There were, in addition, other provisions in RIPA which were more obviously directed to complaints of abuse of the intelligence services regulatory power which made it impossible to adopt As construction (Para 18). It also did not seem right to regard proceedings of the kind intended here as immune from the same requirement for non disclosure of information as other proceedings against the intelligence services (Para 19). Lord Brown then went on to consider whether there were sufficiently strong arguments available to A which would require the Court to construe section 65 in a way which was contrary to Lord Browns initial conclusions as to its construction. For the reasons set out below, Lord Brown concluded that there were no such arguments available to A. Lord Brown rejected As argument to the effect that to construe section 65 as conferring exclusive jurisdiction on the IPT would constitute an ouster of the jurisdiction of the courts that would be constitutionally objectionable (Para 21). RIPA, the 1998 Act and the Civil Procedure Rules all came into force at the same time as part of a single legislative scheme and it could not be said that section 65(2)(a) was ousting some pre existing right (Paras 21 22). Parliament had not ousted judicial scrutiny of the acts of the intelligence services, but had simply allocated that scrutiny (as to section 7(1)(a) proceedings) to the IPT (Para 23 24). Lord Brown also rejected the argument that forcing As article 10 challenge into the IPT would result in breaches of article 6 of the Convention. Claims against intelligence services inevitably raise special problems that cannot be dealt with in the same way as other claims and this was recognised both domestically and by the European Court of Human Rights (Para 26). The Court would be going further than the Strasbourg jurisprudence if it were to hold that the IPT procedures are necessarily incompatible with article 6(1) and it would decline to do so here (Para 30). Even if the IPTs rules are in any way incompatible with article 6, the remedy would be to modify them, instead of adopting some artificially limited construction of the IPTs jurisdiction (Para 31). The anomalies which A alleged would arise if the Court of Appeals construction were to be adopted also did not cast doubt on the correctness of the Court of Appeals decision (Paras 32 37). |
The issue in this appeal is whether the Court of Appeal was right to order a retrial in respect of the appellant. The circumstances in which a court may order a retrial are set out in section 7(1) of the Criminal Appeal Act 1968, as amended by the Criminal Justice Act 1988, which provides: Where the Court of Appeal allows an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried. The appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. On 11 June and 13 October 1996 robberies took place at the home of two elderly brothers. On both occasions the robbers used violence and took money. On the second occasion, the elder brother sustained injuries to the head which later resulted in his death. In the ensuing police investigation Chapman provided the police with information and witness statements implicating the appellant and his brother. They were charged with robbery and murder. Chapmans evidence was central to the prosecutions case at trial. He vigorously denied that he was expecting or receiving any benefits from the police for his evidence. Following the convictions there were allegations in the local press that the police were planning to pay Chapman a large sum of money upon his release from prison. Subsequently, the Criminal Cases Review Commission (CCRC) decided to investigate. North Yorkshire Police carried out detailed investigations into the activities of the police which formed the basis of the CCRC report in November 2008. The findings of the report showed that the police had conspired to pervert the course of justice in concealing and lying about a variety of rewards and benefits received by Chapman. It was revealed, for example, that the police had paid him sums of money, taken him to brothels, allowed him to consume drugs in their company and not investigated allegations that he had committed violent attacks. On 25 November 2008 the CCRC made a reference to the Criminal Division of the Court of Appeal on the ground that the convictions had been procured by gross prosecutorial misconduct on the part of the police. The appellant and his brother remained in prison during this period. Between October 1998 and September 2004, whilst in prison, the appellant had made a series of admissions of guilt freely and voluntarily to various persons. On 1 December 2009, the Court of Appeal quashed the convictions of the appellant and his brother. The findings of the CCRC relating to the gross police misconduct were not challenged. The court held that had the findings been revealed during the trial, the trial judge might have stayed the prosecution as an abuse of process or applied section 78 of the Police and Criminal Evidence Act 1984 to exclude Chapmans evidence altogether, in which case the appellant and his brother would have been acquitted. However, the court also held that the admissions made by the appellant between 1998 and 2004 constituted clear and compelling evidence of his guilt. In light of this the Court of Appeal found that it was in the interests of justice to order a retrial of the appellant. The Supreme Court dismisses the appeal by a majority of 3:2. Lord Dyson gives the lead judgment. Lords Rodger and Mance give short concurring judgments. Lords Brown and Collins dissent. On 17 November 2010 the Supreme Court handed down its decision but withheld its reasoning until the completion of the retrial. On 16 June 2011, in Leeds Crown Court Paul Maxwell pleaded guilty. By section 7 of the Criminal Appeal Act 1968, as amended, Parliament has given the Criminal Division of the Court of Appeal the power to order a retrial where, having regard to all the circumstances of the particular case, in its view the interests of justice so require. The interests of justice is not a hard edged concept. Rather, it requires an exercise of judgment in which a number of relevant factors have to be balanced against each other. A decision of the Court of Appeal as to whether the interests of justice require a retrial should only be upset on appeal if it was plainly wrong in the sense that it is one which no reasonable court could have made or if the court took into account immaterial factors or failed to take into account material factors: [18] [19]. The majority of cases under section 7 of the 1968 Act do not involve any issue of prosecutorial misconduct. Indeed, no case was cited where the court had to consider the relevance of prosecutorial misconduct in the original proceedings to the question of whether the interests of justice require a retrial. Usually, under section 7 the court will consider the gravity of the offence, the length of time the appellant is likely to serve in custody if reconvicted, the appellants age and health, and the wishes of the victim of the alleged offence: [20]. Where prosecutorial misconduct is involved the Court of Appeal may treat the case as to some extent analogous to an application to stay proceedings as an abuse of process where it offends the courts sense of justice and propriety to try the accused. However, the tests for when the court should stay proceedings for abuse of process and when it should order a retrial are not coterminous. The question of whether the interests of justice require a retrial is broader than the considerations involved in an application for a stay: [21], [44]. It is common ground that the prosecutions case at a retrial would not be based on any evidence which was the product of the misconduct. However, the new evidence constitutes admissions made by the appellant which would not have been made but for the original misconduct which led to his conviction. The Court of Appeal was right to consider that the but for factor was no more than a relevant factor and that it was not determinative of the question whether a retrial was required in the interests of justice. In deciding whether to order a retrial, there were several relevant factors which had to be weighed in the balance. The balancing act is fact sensitive and ultimately requires an exercise of judgment. The Court of Appeal carried out the balancing exercise precisely and with great care. They held that there were strong reasons for not ordering a retrial given the egregious misconduct by the police. However, they concluded that the public interest in convicting those guilty of murder prevailed on the facts of this case. In particular this was because of the gravity of the alleged offence and the existence of new and compelling evidence untainted by the police misconduct. The fact that a differently constituted Court of Appeal might have come to a different conclusion is not material. Accordingly, the decision of the Court of Appeal was not plainly wrong and its judgment should not be interfered with: [23] [38], [45] [47], [50] [60]. Lord Brown, with whom Lord Collins agrees, would have allowed the appeal. They would have held that since the appellant would not have made the admissions but for the prosecutorial misconduct and in light of the enormity of the police misconduct, it is inappropriate that that the case should be retried on new evidence: [102] [105]. |
This is an application for directions in a pending appeal. The appeal concerns a claim in negligence by Mr Gabriel (the Appellant) against his solicitors (the First Respondent). The trial judge awarded Mr Gabriel 200,000 in damages and ordered the solicitors to pay Mr Gabriels costs. The Court of Appeal reduced the damages award to a nominal 2, set aside the judges costs order, and ordered Mr Gabriel to pay the solicitors costs of the proceedings up to and including the appeal. That order was made on 22 November 2013. On 5 March 2014, Mr Gabriel was made bankrupt. On 25 March 2014, Mr Hughes Holland was appointed as his trustee in bankruptcy. Also on 25 March 2014, permission was granted for the appeal to proceed to the Supreme Court. The right to pursue the appeal now rests with the trustee. If a trustee in bankruptcy decides to adopt legal proceedings which were on foot at the time of the bankruptcy, the trustee personally becomes a party to those proceedings in place of the bankrupt, either by way of formal substitution or simply by virtue of being treated as if he has been substituted. An order for costs may therefore be made against the trustee personally if the proceedings are unsuccessful. The trustee then has a right of indemnity against the bankrupts assets if the costs liability is properly incurred. Mr Hughes Holland accepts that if he decides to pursue this appeal and loses he will be personally liable for the solicitors costs before the Supreme Court. However, he says that he is not personally at risk by virtue of adopting the appeal as trustee in bankruptcy for the solicitors costs of the proceedings before the trial judge and the Court of Appeal. If Mr Hughes Holland pursues the appeal and wins, then Mr Gabriels creditors will receive between 23p and 25p in the pound instead of between 3p and 5p in the pound. But if Mr Hughes Holland pursues the appeal and loses, and he is ordered to pay not only the costs of the appeal to the Supreme Court but also the costs of the hearings below, the costs liability will exceed the value of the estate and Mr Hughes Holland will probably have to make up the difference from his own pocket. He therefore seeks confirmation as to the costs position so that he can decide whether to pursue the appeal. The solicitors argue that the Supreme Court does not have jurisdiction to make any order as to costs at this stage and in any event that Mr Hughes Holland should be personally liable for the costs of the proceedings below if he loses the appeal. The Supreme Court unanimously holds that if Mr Hughes Holland decides to pursue the appeal he will not by virtue only of his office as Mr Gabriels trustee in bankruptcy or of his adoption of the appeal be held personally liable for costs of the hearings before the trial judge and the Court of Appeal. Lord Sumption gives the only judgment, with which all other members of the Court agree. The Supreme Court has jurisdiction to deal with this application and it is proper to exercise it. Section 40(5) of the Constitutional Reform Act 2005 empowers the Court to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment. Rule 46 of the Supreme Court Rules 2009 further provides that the court may make such costs orders as it considers just, and that it may do so either at final determination of an appeal, or application for permission to appeal, or in the course of proceedings. It is not usual for the court to decide an issue going to costs before the hearing of the substantive appeal. However, the ruling is necessary now to enable the trustee to decide whether to proceed, and the court is in as good a position to decide this issue now as it would be later: the application does not raise any discretionary considerations, nor does it affect the propriety of any decision of the trustee to pursue the appeal. [6 8] The Court of Appeal authority Borneman v Wilson (1884) 28 Ch D 53 suggests that a trustee in bankruptcy must either adopt proceedings in their entirety or not at all, even where there are discrete prior proceedings conducted by the bankrupt before his appointment. At that time, the court did not have jurisdiction to award costs against a non party, which would have included the bankrupt where the trustee had been substituted for the bankrupt; moreover, liability under such an order would not have been provable against the estate because of a line of case law which said that such liability was not contingent at the time of bankruptcy. The jurisdiction to award costs against a non party was recognised by the House of Lords in 1986 and the possibility of proving liability under a costs order against a company in liquidation, and consequently also against a bankrupts estate, was recognised by the Supreme Court in 2014. The reasons behind the Court of Appeals conclusion in Borneman are therefore no longer relevant and it is possible to revisit the issue as a matter of principle. [11 14] It may be appropriate as a matter of discretion to order a trustee in bankruptcy to pay the other sides costs of legal proceedings including those incurred before the trustee became a party, but there is no longer any absolute rule to that effect. [15] But the issue in this application does not concern that discretionary assessment. A trial and the successive appeals from the order made at trial are distinct proceedings in the same action and a distinct order for costs is made in respect of each stage. [16] Mr Gabriel was responsible for the entire conduct of the trial and the appeal to the Court of Appeal, and the costs order which was made against him by the Court of Appeal is a provable debt in his bankruptcy. It would be contrary to principle for Mr Hughes Holland to be held liable for costs in the proceedings below, as this would merely give the solicitors an unwarranted priority for their claim under the Court of Appeals costs order. [17] |
Mr Nunn was convicted in November 2006 of killing his girlfriend following the end of their relationship. Her body was found by a river two days after that end, having been subjected to various indignities and abuses. Evidence was given at trial that he had rowed noisily with her on the night she disappeared, and had been seen carrying what appeared to be a body out of her house. Small traces of sperm were found on her inner thigh and pubic area. Mr Nunn consistently asserted his innocence before, during, and following his trial. He pointed to the sperm presence as indicating another killer, since he had had a vasectomy. Following his conviction Mr Nunn sought to appeal, which was refused. In January 2008 Mr Nunn began to make written applications to the police for supply of all of their records of the investigation into his case. By February 2010 he had instructed fresh solicitors, who made further applications to the police on his behalf. They initially sought the investigation records and requested fresh enquiries to be made into Mr Nunns girlfriends finances. Some research was undertaken, and the CPS responded saying that the deceased had not been living beyond her means. A number of other requests followed, including a request for notes of the forensic scientists working on the case, and various items of evidence. The police formally replied, stating that their only obligation was to disclose material which might cast doubt on the safety of the conviction. Mr Nunn judicially reviewed that decision, arguing that the police were required to provide, after conviction, the same disclosure as is required of them pending trial and appeal. The Divisional Court rejected that application. Mr Nunn appealed to the Supreme Court, arguing that there is an enforceable common law disclosure obligation requiring the police to provide, in his case, at least: (i) Access to the working papers of the forensic scientists who advised the Crown and/or gave evidence, and (ii) Requests for re testing or first testing of various items of evidence recovered in the course of the investigation. The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the only reasoned judgment, with which the other members of the Court agree. The common law duty of disclosure exists in addition to the statutory duty of trial disclosure created by the Criminal Procedure and Investigations Act 1996 (CPIA 1996). The basis of the common law duty is fairness, and what fairness requires varies depending on the stage reached by the proceedings. There is no basis for the submission that the full trial duty of disclosure and investigation continues indefinitely: this would be contrary to the public interest in finality and to the need for finite police resources to be appropriately applied. The extent of the common law duty post appeal is correctly stated in the Attorney Generals guidelines: any material coming to light that might cast doubt on the safety of the conviction should be disclosed. However, the Criminal Cases Review Commission can, in appropriate cases, make enquiry to see whether a reasonable prospect of a conviction being quashed can be demonstrated, which includes a power to direct new scientific tests and similar. Moreover, the police and prosecutors can choose to accede to representations for further enquiry made on behalf of convicted persons, and should exercise sensible judgment in relation to such representations. The Crowns duty of disclosure and inspection was formulated by the common law in the second half of the twentieth century, mirroring parallel developments in other common law jurisdictions. A general duty was formulated to disclose any evidence reasonably thought capable of assisting a defendant [16]. Inspection would generally go with disclosure, though there were additional considerations in this sphere [17]. The CPIA 1996 put the duty of disclosure on a statutory footing, displacing the common law duties within its sphere of operation, and applying to any material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. That statutory duty is temporally limited: for Crown Court cases, it applies between the arrival of the case in the Crown Court to the end of the trial [18 20]. Thus it does not apply to Mr Nunn. The basis of the common law duty of disclosure is fairness. However, fairness does not require the same level of disclosure at every stage of the process [22]. Before committal, the duty is limited to evidence that might be relevant at that stage [23]. Similarly, pending sentence, the duty is only to disclose material relevant to sentence [24] and, pending appeal, to disclose material relevant to the appeal [25]. That conclusion is consistent with the approach reached in other common law jurisdictions: New Zealand, Canada and America [26 28]. Therefore there is no basis for finding a temporally limitless duty of disclosure post conviction identical to that subsisting during trial [29]. During trial, the defendant is presumed innocent: post conviction he/she is proved guilty. There is an important public interest in exposing any flaw in the conviction, but there is also a powerful public interest in finality of proceedings [32], and in ensuring that the polices finite resources are applied to current investigations, unless there is a good reason for review [33]. The remaining question was what the post conviction duty of disclosure does entail [34]. Clearly, if the police or prosecution come into possession of evidence affording arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant [35]. This was the limit of the duty of disclosure [38]. There are however additional safety nets: o The CCRC has a power to review any conviction and refer a conviction it considers unsafe to the Court of Appeal. It has extensive investigative powers including powers to require production of evidence held by public bodies, to appoint investigators, and to assemble fresh evidence [20]. Its powers include making enquiries to see whether a prospect of a reasonable conviction can be shown, which includes a power to direct new scientific tests [39]. o It is always open to police and prosecutors to accede to representations made on behalf of convicted persons. Police and prosecutors should exercise sensible judgment when such representations are made and, if there appears to be a real prospect that further enquiry will uncover something of real value, there should be co operation in making those further enquiries [41]. |
Land that has been used by the inhabitants of a locality for sports and pastimes as of right for at least 20 years may be registered as a town or village green, pursuant to the Commons Registration Act 1965 (the Act). If the registration is wrongly made, an application can be made under section 14(b) for the register to be rectified. The issue in these appeals is the effect of a lapse of time on an application for rectification. The first appeal concerns land known as Clayton Fields in Huddersfield. Planning permissions dating back to the 1960s had been granted for housing development on the land, and it remained designated for such development in local plans. No building had however occurred by 1996, when an application by the Clayton Fields Action Group (the Action Group) was successfully made to register the land as a village green. The then landowners sold the land to the respondent (Paddico) in 2005, and in 2010 Paddico applied for rectification of the register. The application was granted by Vos J in the High Court, who held that the land had been wrongly registered as it had not been used by inhabitants from a single locality, and it was just to rectify the register, notwithstanding the long delay, as little prejudice (harm or detriment) had been demonstrated by the residents. The Court of Appeal agreed with the judge that the land had been wrongly registered but, by a majority, allowed the Action Groups appeal on the ground that the delay in seeking rectification made it unjust to rectify. In the second appeal, the Society for the Protection of Markham and Little Francis (the Society) successfully applied to register an area of 46 acres of open land in Weymouth as a village green in June 2001. The land was sold to the respondent (Betterment) in May 2005, who applied to rectify the register in December 2005. The application was granted in the High Court. Morgan J found that the registration should not have been made, as the use of the land had not been as of right, and that it was just to rectify the register as the inhabitants had been enjoying rights which they should never have had. His order was upheld by the Court of Appeal. Paddico and the Society appealed to the Supreme Court on the sole issue of the relevance of the lapse of time before making an application to the question of whether it was just to rectify the register. The Supreme Court unanimously allows Paddicos appeal, and dismisses that of the Society. It holds that a lapse of time is not immaterial to the justice of applications for rectification but that in these cases there was no evidence before the court to show that significant detriment to others had occurred as a result. Lady Hale gives the only judgment. Where an application for rectification in respect of land wrongly registered as a village green is made there are many private and public interests in play: those of the landowners who have been severely restricted in the use to which the land can be put; those of the local inhabitants who have been enjoying the amenity of the green; and those of the wider public, which include the protection of the accuracy of public registers, the preservation of public open spaces and the securing of the use of land earmarked for development for that purpose [1]. If there has been a lapse of time before making the application the court must adopt a principled approach to its relevance in circumstances where there is no precise analogy with public law claims (which are subject to short time limits), private law claims subject to limitation periods, or private property claims subject to the equitable doctrine of laches (unconscionable delay) [20]. The starting point is the Act itself, which lays down no limitation period for s 14 applications. S 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants [33]. Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy [34]. Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights [35]. The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had [38]; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register [39]; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development [40]; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondents significant detriment [42]. Applying these principles, the courts below had reached the right decision in the Betterment application, where there was no evidence of detriment [43]. In the Paddico application, the trial judge had correctly found that, although the lapse of time was over 12 years, there was no evidence of specific detriment to the local inhabitants, but injustice to the landowner by being deprived of the right to seek to develop the land, and to the public in the unavailability of the land for such development. The judges order for rectification would be restored [44]. |
Liability for non domestic rates depends on a property being entered as a hereditament in the rating list. Section 46A of and Schedule 4A to the Local Government Finance Act 1988 (the 1988 Act) create a completion notice procedure, by which a new building that has not yet been occupied may be brought into the rating list. Where a completion notice has been validly served the building to which it relates is deemed to have been completed on the date specified in the notice. It is then shown in the rating list as a separate hereditament, valued as if it were complete, and its owner or occupier becomes liable to an assessment for non domestic rates. In January 2009, the respondent (UKI) began the redevelopment of a building at 1 Kingsway. In February 2012, the appellant council informed UKIs agents that it intended to serve a completion notice specifying a completion date of 1 June 2012. The building was being managed by Eco FM (Eco), under a contract with UKI, but Eco had no authority to accept service on UKIs behalf. On 5 March 2012, the council delivered a completion notice by hand to the building, specifying 1 June 2012 as the completion date. It was addressed to Owner, 1 Kingsway, London WC2B 6AN. It was given to a receptionist employed by Eco, who scanned and emailed a copy of the notice to UKI, which received it by no later than 12 March 2012. On 29 March 2012, an appeal was lodged by UKIs agents against the completion notice, on behalf of Eco, on the grounds that the service of the notice was invalid because it was not served on UKI but on the receptionist for Eco. On 7 May 2013, the premises were brought into the rating list with effect from 1 June 2012. UKI proposed that the entry be deleted due to invalid service, but this was not accepted by the valuation officer. The Valuation Tribunal allowed the appeal against the completion notice and the inclusion of the premises in the rating list. The Upper Tribunal reversed that decision, but it was re instated by the Court of Appeal. The issue for the Supreme Court is whether the completion notice was validly served on the date it was received by UKI, in circumstances where: (i) it was not delivered directly but passed through the hands of Ecos receptionist, who was not authorised for that purpose by either party; and (ii) it was received in electronic, rather than paper form. Indirect service The Supreme Court unanimously allows the appeal and restores the order of the Upper Tribunal. Lord Carnwath gives the lead judgment. (i) The means of service prescribed by the statute are not exclusive. Under ordinary principles the real issue is whether the council caused the notice to be received by UKI [36]. Regarding the interposition of a third party, in the form of the Eco receptionist, it is unnecessary and unrealistic to introduce concepts of agency or statutory delegation. As the Upper tribunal observed, the Eco receptionist did no more than would reasonably be expected of a responsible employee in that position. It was the natural consequence of the councils actions [37]. Causation does not depend on control. For example, if a notice is correctly addressed, but mistakenly delivered to a neighbour who passes it on to the intended recipient, there is no reason why that should not be treated as effective service under ordinary principles of causation, even though that neighbour was not under the control of either party [38]. Arguments about possible uncertainty are not persuasive, since some uncertainty in this respect is inherent in the legislation, in which neither the methods of service nor the dates of service in different circumstances are exhaustively defined. Where the date of service is critical, a billing authority may choose a statutory method of service that eliminates or minimises the risk of invalidity by failure to specify the correct date of service. If it chooses a non statutory method, it must bear that risk. The risk of prejudice to the building owner is limited, as outside the statutory methods service depends on actual receipt by the intended recipient [42 43]. (ii) Electronic communication Before the enactment of the Electronic Communications Act 2000 (the 2000 Act), the state of the law was such that service by fax was valid. There is no good reason for distinguishing transmission by fax from transmission by email as in this case. Parliament must be taken to have legislated against that background. The respondent has not been able to indicate any provision of the 2000 Act that expressly or impliedly restricts the previous law, nor an overall inconsistency sufficient to overcome the general presumption that Parliament does not intend to change the common law [44 45]. The purpose of the 2000 Act and Orders made under it is to provide a clear and certain basis for the routine use of electronic methods by authorities. That purpose is not undermined by a conclusion that under general principles, and on the particular facts of this case, the notice was successfully served by email. Therefore, the property was correctly brought into the rating list with effect from 1 June 2012 [46]. |
Mr Patel gave Mr Mirza 620,000 to place bets on a banks share prices with the benefit of insider information. Mr Mirza expected his contacts to inform him of a government announcement about the bank. Mr Mirzas expectation was not fulfilled and the intended betting did not take place. But Mr Mirza did not return the money to Mr Patel. Mr Patel brought a claim against Mr Mirza for the money and Mr Mirza contended that the claim should fail because of the illegality of the arrangement with Mr Patel. The issue was when involvement in illegality bars a claim. Mr Patel succeeded in the Court of Appeal and Mr Mirza was required to repay the money. Mr Mirza appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Mirzas appeal. Mr Patel is entitled to restitution of the 620,000 which he paid to Mr Mirza. Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agree) gives the lead judgment. Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption concur in the result, but by different processes of reasoning. Lord Mansfield said in Holman v Johnson (1775) 1 Cowp 341, 343 that no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act [1]. Behind this maxim, there are two broad policy reasons for the common law doctrine of illegality as a defence to a civil claim. First, a person should not be allowed to profit from his own wrongdoing. Second, the law should be coherent and not self defeating, condoning illegality by giving with the left hand what it takes with the right hand [99]. The reliance test expressed in Tinsley v Milligan [1994] 1 AC 340 bars the claimant if he/she relies on the illegality in order to bring the claim. This test has been criticised and Tinsley should no longer be followed [110]. The essential rationale of the illegality doctrine, as explained by the Supreme Court of Canada in Hall v Hebert [1993] 3 RCS 159, is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, it is necessary to consider a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) any other relevant public policy on which the denial of the claim may have an impact and c) whether denial of the claim would be a proportionate response to the illegality. Various factors may be relevant, but the court is not free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate [120]. In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties respective culpability [107]. A claimant, such as Mr Patel, who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there are no such circumstances in this case [121]. Lord Kerr writes a concurring judgment elaborating on aspects of Lord Toulsons judgment. Lord Kerr identifies that there is a choice of approaches between a rule based approach on the one hand and on the other a more flexible approach, taking into account the policy considerations that are said to favour recognising the defence of illegality [133]. A rule based approach to the question has failed to lead to the predictability it sought. Further, it is questionable whether particular weight should be given to predictability where a claimant and defendant have been parties to an illegal agreement [137]. Lord Neuberger [143, 163], Lord Mance [197 199], Lord Clarke [210] and Lord Sumption [250, 253] all conclude there is no inconsistency in the law in permitting a party to an illegal arrangement to recover any sum paid under it, so long as restitution is possible. An order for restitution simply returns the parties to the positon in which they would and should have been, had no such illegal arrangement been made. Lord Neuberger goes on however to express the further view that, in relation to other issues involving illegal arrangements, the approach suggested by Lord Toulson provides as reliable and helpful guidance as it is possible to give [174, 186]. Lord Mance, Lord Clarke and Lord Sumption, in separate judgments expressing general agreement with each other, consider that, with the above clarification of the operation of restitution, there is no basis for substituting for the clear cut principle identified in Holman v Johnson and Hall v Hebert, founded on the need to maintain the integrity of the law, a mix of factors as advocated by Lord Toulson, which would not offer the same coherence or certainty [206 207, 216 219 and 259 265]. |
Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41]. |
The appeals arise out of the attempted enforcement of an investment arbitration award (the Award) in favour of the Respondents to this appeal (the Claimants) against the Appellant (Romania) in relation to investments made by the Claimants in food production in Romania before the country acceded to the European Union (EU). With effect from 1 April 1999, Romania adopted an investment incentive scheme for certain regions (EGO 24). On 30 June 1999, Romania incorporated EU State aid rules into domestic law, as a result of which EGO 24 was modified. During the early 2000s, the Claimants invested in a large, highly integrated food production operation in the relevant region in reliance on EGO 24. In 2002, Romania and Sweden entered into a bilateral investment treaty (the BIT) providing reciprocal protection of investments and investor State arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention). During the accession negotiations between Romania and the EU before its accession on 1 January 2007, the EU informed Romania that certain schemes, including EGO 24, were contrary to EU State aid rules. As a result, Romania repealed all but one of the incentives under EGO 24. On 28 July 2005, the Claimants filed a request for ICSID arbitration under the BIT based on this repeal. On 11 December 2013, the tribunal issued the Award, deciding that Romania had breached the BIT and awarding compensation of approximately 70m plus interest. Romania unsuccessfully applied to annul the Award. Romania purported to implement the Award by setting off tax debts owed by one of the Claimants. This precipitated the European Commission issuing an injunction on 26 May 2014 ordering Romania to suspend any action that might lead to execution of the Award until the Commission had taken a final decision on its compatibility with State aid rules (the injunction decision). On 1 October 2014, the Commission formally opened a State aid investigation (the initiating decision). On 30 March 2015, the Commission adopted a final decision (the Commission Decision) concluding that the payment of the Award by Romania constituted unlawful State aid. The Claimants sought annulment of the Commission Decision before the General Court of the European Union (the GCEU) in 2015. On 18 June 2019, the GCEU annulled the Commission Decision on the ground that the Commission had purported to apply its powers retroactively to events pre dating Romanias accession to the EU. The Commission applied to appeal this decision. The English proceedings were started in 2014 by the Claimants applying for registration of the Award under the Arbitration (International Investment Disputes) Act 1966 (the 1966 Act), which was granted. In 2015, Romania applied for a stay of enforcement and the Claimants sought an order for security. In 2017, the High Court granted Romanias application to stay enforcement pending the GCEU proceedings and refused the Claimants application for security. The Claimants appealed these orders. In 2018, the Court of Appeal continued the stay but ordered that Romania provide security. Romania appealed the order for security and the Claimants cross appealed the grant of a stay. The hearing before the Supreme Court was listed to start on 18 June 2019, but that morning the GCEU handed down its judgment, causing the hearing to be adjourned until October 2019. The Supreme Court unanimously allows the Claimants cross appeal and lifts the stay. In light of this, it is no longer necessary to consider Romanias appeal in relation to security, so that order is discharged. Lord Lloyd Jones and Lord Sales give the judgment, with which all members of the Court agree. The Court considers the Claimants cross appeal first [40]. The Claimants appeal the stay on five grounds: (1) the effect of the GCEUs judgment is that the duty of sincere co operation no longer requires the English courts to stay enforcement; (2) there is no power to order a stay under the ICSID Convention and the 1966 Act; (3) the stay is incompatible with the ICSID Convention; (4) the European Communities Act 1972 does not require the United Kingdom to breach pre accession obligations under the ICSID Convention; and (5) Article 351 of the Treaty on the Functioning of the EU (TFEU) applies, with the result that the obligations of the United Kingdom under the pre accession ICSID Convention are not subject to the overriding effect of EU law [38] [39]. First, the Claimants submit that the GCEU decision annulling the Commission Decision changes the circumstances, meaning there is no EU law duty on the English courts to stay enforcement [43]. Romania, and the Commission intervening, submit that the GCEU judgment annuls only the Commission Decision and not the injunction or initiating decisions [44]. The Court considers that the GCEU judgment leaves in existence an extant Commission investigation into State aid. Without a final Commission decision closing the formal investigation procedure, the effects of the initiating decision subsist, imposing a duty of sincere co operation on the English courts [51]. Second, in relation to the Claimants second and third grounds, the Court examines the ICSID Convention and the 1966 Act [60] [63]. The Court emphasises that the scheme of the ICSID Convention does not permit a domestic court before which recognition is sought to re examine an award on its merits, once its authenticity is established [68]. In light of the wording of articles 54(1) and the preparatory materials, it is arguable that there is scope for certain exceptional defences against enforcement if national law recognises them in respect of final domestic judgments [78]. Though the proper interpretation of article 54(1) of the ICSID Convention is something which could only be authoritatively resolved by the International Court of Justice, it does not affect the outcome of the present case [83]. The Court agrees with the majority in the Court of Appeal that English courts have the power to stay execution of an ICSID award in the limited circumstances they describe, but in the present circumstances the granting of a stay exceeds the proper limits of that power and is not consistent with the ICSID Convention [84]. Finally, the Claimants fourth and fifth grounds collapse into one another and thus fall to be considered together [89]. Article 351 TFEU is intended to establish that the application of the EU treaties does not affect the duty of a member state to respect the rights of non member states under a prior agreement and to perform its obligations thereunder [97]. In the Courts view, the specific duties in articles 54 and 69 of the ICSID Convention are owed to all other Contracting States, including non member states [107] [108]. The duty of sincere co operation does not require courts in this jurisdiction to decline to decide the issue pending its resolution by the EU courts; EU case law makes it clear that questions regarding prior treaties under article 351 are not reserved to the EU courts. The article 351 issue here the extent of the United Kingdoms obligations under the ICSID Convention is not the same issue that is before the EU courts [112] [113]. The possibility that the EU courts may consider the issue at some future stage is contingent and remote. In such circumstances the duty of sincere co operation does not require the imposition of a stay of enforcement of the Award [117]. The Court therefore allows the Claimants cross appeal and lifts the stay. In light of this conclusion, it is no longer necessary to consider Romanias appeal in relation to security [118] [119]. |
This appeal concerns the circumstances in which an arbitrator in an international arbitration may appear to be biased. It raises important questions about the duty of impartiality and obligation of arbitrators to make disclosure. The appeal relates to an arbitration under a liability insurance policy which arose out of damage caused by an explosion and fire on the Deepwater Horizon drilling rig in the Gulf of Mexico. BP Exploration and Production Inc. (BP) was the lessee of the Deepwater Horizon rig. Transocean Holdings LLC (Transocean) owned the rig and provided crew and drilling teams to BP. The appellant, Halliburton Company (Halliburton) provided cementing and well monitoring services to BP. Halliburton had entered into a Bermuda Form liability policy with the respondent, Chubb Bermuda Insurance Ltd (Chubb"). Transocean was also insured with Chubb by a Bermuda Form policy. The Deepwater Horizon disaster resulted in numerous claims against BP, Transocean and Halliburton. Following a trial in the US in which judgment was given apportioning blame between the parties, Halliburton settled the claims against it. Halliburton then sought to claim against Chubb under the liability policy. Chubb refused to pay contending that Halliburtons settlement was not a reasonable settlement. Transocean made a similar claim against Chubb and Chubb likewise contested Transoceans claim. The Bermuda Form policies provided for disputes to be resolved by arbitration. Halliburton commenced arbitration. Halliburton and Chubb each selected one arbitrator but were unable to agree on the appointment of a third arbitrator as chairman. As a result, after a contested hearing in the High Court, Mr Rokison, proposed by Chubb to the court, was appointed. Subsequently and without Halliburtons knowledge, Mr Rokison accepted appointment as an arbitrator in two separate references also arising from the Deepwater Horizon incident. The first appointment was made by Chubb and related to Transoceans claim against Chubb. The second was a joint nomination by the parties involved in a claim by Transocean against another insurer. On discovering Mr Rokisons appointment in the later references, Halliburton applied to the court under section 24 of the Arbitration Act 1996 to remove Mr Rokison as an arbitrator. That application was refused. On appeal, the Court of Appeal found that, while Mr Rokison ought to have disclosed his proposed appointment in the subsequent references, an objective observer would not in the circumstances conclude there was a real possibility Mr Rokison was biased. The appeal was therefore dismissed. Halliburton renews its challenge before the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds, for reasons which differ in part from courts below, that as at the date of the hearing to remove Mr Rokison, the fair minded and informed observer would not conclude that circumstances existed that gave rise to justifiable doubts about Mr Rokisons impartiality. Lord Hodge gives the leading judgment with whom Lord Reed, Lady Black and Lord Lloyd Jones agree. Lady Arden gives a concurring judgment. The law The duty of impartiality is a core principle of arbitration law [49]. In English law, the duty applies equally to party appointed arbitrators and independently appointed arbitrators [63]. In considering an allegation of apparent bias against an arbitrator, the test is whether the fair minded and informed observer would conclude there is a real possibility of bias [52, 55]. The courts will apply that objective test, having regard to the particular characteristics of international arbitration, including the private nature of most arbitrations [56 68]. The duty of disclosure is not simply good arbitral practice but is a legal duty in English law. It is a component of the arbitrators statutory obligations of fairness and impartiality [78]. The legal duty of disclosure does not, however, override the arbitrators duty of privacy and confidentiality in English law. Where information which needs to be disclosed is subject to a duty of confidentiality, disclosure can only be made if the parties owed confidentiality obligations give their consent. Such consent may be express but may also be inferred from the arbitration agreement itself in the context of the custom and practice in the relevant field of arbitration [88 104]. The arbitrators duty of disclosure is to disclose matters which might reasonably give rise to justifiable doubts as to his or her impartiality [107 116]. A failure to disclose relevant matters is a factor for the fair minded and informed observer to take into account in assessing whether there is a real possibility of bias[117 118]. In assessing whether an arbitrator has failed in a duty to make disclosure, the fair minded and informed observer will have regard to the facts and circumstances as at and from the time the duty arose [119 120]. In contrast, in assessing whether there is a real possibility that an arbitrator is biased, the fair minded and informed observer will have regard to the facts and circumstances known at the time of the hearing to remove the arbitrator [121 123]. The issues in this appeal There may be circumstances where the acceptance of multiple appointments involving a common party and the same or overlapping subject matter gives rise to an appearance of bias. Whether it does so will depend on the facts of the case and, in particular, the customs and practice in the relevant field of arbitration [127 131]. Where, as in the context of a Bermuda Form arbitration, the circumstances might reasonably give rise to a conclusion that there was a real possibility of bias, the arbitrator is under a legal duty to disclose such appointments unless the parties to arbitration have agreed otherwise [132 136]. Applying those conclusions to the facts, Mr Rokison was under a legal duty to disclose his appointment in the subsequent reference involving Chubb and Transocean. At the time of his appointment, the existence of potentially overlapping arbitrations with only one common party, Chubb, might reasonably have given rise to a real possibility of bias [145]. In failing to make that disclosure Mr Rokison breached his duty of disclosure [147]. However, having regard to the circumstances known at the date of the hearing at first instance, it could not be said that the fair minded and informed observer would infer from Mr Rokisons failure to make disclosure that there was a real possibility of bias. At the time, it had not been clear that there was a legal duty of disclosure. Secondly, the Transocean arbitrations had commenced several months after the Halliburton arbitration. Thirdly, Mr Rokisons measured response to Halliburtons challenge explained that it was likely the subsequent references would be resolved by a preliminary issue (as they in fact were) and that, if they were not, he would consider resigning from the Transocean arbitrations. There was therefore no likelihood of Chubb gaining any advantage by reason of overlapping references. Fourthly, there was no question of his having received any secret financial benefit, and, fifthly, there was no basis for inferring any unconscious ill will on his part. As a result, Halliburtons appeal fails [149 150]. Lady Ardens concurring judgment Lady Arden agrees with Lord Hodges judgment but makes a few further points to reinforce or, in some instances, qualify the conclusions reached. The duty of disclosure is a secondary obligation arising from the arbitrators primary duty to act fairly and impartially [160]. Unless the arbitration is one where there is an accepted practice of dispensing with the need to obtain parties consent to further appointments, the arbitrator should proceed on the basis that a proposed further appointment involving a common party and overlapping subject matter is likely to require disclosure of a possible conflict of interest [164]. The duty of disclosure is rooted in the duty of impartiality but is also an implied (if not express) term of the arbitrators appointment [167]. The parties can therefore agree to waive any objection to a conflict of interest, but disclosure is only an option if the conflict is one which would not prevent the arbitrator from acting impartially [168, 170]. Confidentiality is an important and free standing implied term [173 175]. But, in general, high level disclosure about a proposed appointment in a further arbitration can be made without any breach of confidentiality by naming only the common party (who may be taken to have consented to disclosure) but not the other parties to the arbitration [183 187]. |
This appeal concerns the relationship between two rights which enable non nationals to remain in the United Kingdom: humanitarian protection, which derives from European law, and asylum, which derives from a combination of domestic law, European law, and international law. The issue in the appeal is whether, because a right of appeal exists against a refusal of an asylum application, European law requires that a right of appeal also be available against a refusal of an application for humanitarian protection. FA is an Iraqi national who arrived unaccompanied in the United Kingdom in August 2007 when he was 15 years old. He made an application for asylum which the Secretary of State refused on the grounds that his claim was not credible. The Secretary of State also considered whether FA qualified for humanitarian protection and / or discretionary leave to remain in the United Kingdom. Humanitarian protection is the domestic means of providing the subsidiary protection which Directive 2004/83/EC (the Qualification Directive), a European legislative instrument, requires to be given to certain third country nationals and stateless persons. The Secretary of State decided that FA did not qualify for humanitarian protection, but granted him discretionary leave to remain until he was 17 and a half years old. Section 83(2) of the Nationality Immigration and Asylum Act 2002 entitled FA to appeal to the Asylum and Immigration Tribunal against the refusal of his claim to asylum. FA made such an appeal and also appealed against the refusal of his claim for humanitarian protection. The Tribunal dismissed both the asylum and humanitarian protection appeals, deciding in respect of the latter that no appeal was available to FA in relation to humanitarian protection. On appeal to the Court of Appeal, FA relied upon the European law principle of equivalence. This provides that, although it is for Member States to prescribe the procedural conditions necessary for the protection of European law rights, national rules regarding those procedural conditions must not be less favourable than those governing comparable domestic actions. FA argued that he must be entitled to a right of appeal against the humanitarian protection decision since the lack of an appeal would mean that this claim, based as it was on European law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law. The Court of Appeal acceded to this argument and allowed FAs appeal. The Secretary of State appealed to the Supreme Court against that decision. The Supreme Court unanimously decides that a number of issues arise on the appeal which require a reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. Lord Kerr delivers the judgment of the panel. The critical question on the appeal is whether the principle of equivalence requires that a right of appeal must be available against the decision to dismiss FAs application for humanitarian protection. This in turn depends on whether there is a comparable domestic right which is subject to more favourable rules than his humanitarian protection right. It is clear that the humanitarian protection claim is subject to less favourable rules than the asylum claim, given that the latter provides FA with an appeal against the initial refusal. The issue, however, is whether the asylum claim is a legitimate comparator. This issue has a number of aspects, in particular: (i) whether the comparator with the European law claim must be a purely domestic measure; (ii) what is required in order that the compared measures may be regarded as sufficiently similar; and (iii) the source of the procedural rights of the asylum applicant. As to (i), on the one hand there is a consistent line of authority from the European Court of Justice to the effect that the domestic measure must be a purely domestic provision. If comparison with another European law provision was possible, much of the underlying purpose of the equivalence principle would be subverted, given that the essential reason for the development of the principle was that a European law right should not suffer disadvantageous treatment relative to national law rights. On the other hand, however, it might be inconsistent with the aim of eliminating discrimination and overly technical to preclude comparison with another right on the basis that the right could be branded as deriving partly from a European law source. [24] [25] As to (ii), various formulae have been employed in case law to describe the nature of the similarity that is required, including whether the purpose, essential characteristics and / or juristic structures of the two measures are the same. There is much to be said for the view that the question of the required similarity and the criteria necessary to establish it in an individual case will depend on the context in which the application of the principle of equivalence is canvassed. [40] [42] As to (iii), the asylum claim is based on provisions that were enacted in pursuance of the United Kingdoms obligations under the Qualification Directive. Yet they mirror requirements set out in the Refugee Convention, an instrument of international and not European law, and this may have been the original source of many of the provisions of the Qualification Directive. Whatever the answer to (iii), however, it does not provide an answer to (i) and (ii). Those essential questions have not been directly addressed by the European Court of Justice and for that reason a reference to the Court for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union is required. [47] The Supreme Court decides to make such a reference and invites the parties to make submissions on the precise questions to be referred. [48] |
These appeals arise out of the decision of the Government to promote the high speed rail link from London to the north known as HS2. The decision was announced in a command paper, High Speed Rail: Investing in Britains Future Decisions and Next Steps (Cm 8247, 10 January 2012) referred to as the DNS. The DNS included confirmation of the Governments high speed strategy and a summary of its decisions, and set out the process by which the Government intended to obtain development consent for HS2 through two hybrid bills in Parliament. The appellants commenced judicial review proceedings in April 2012. The appellants claim was upheld in relation to certain aspects of the consultation process but dismissed on the issues relevant to these appeals. The Court of Appeal gave judgment dismissing the appellants appeal in July 2013. The main issues for this court are first, whether the DNS should have been preceded by a strategic environmental assessment (SEA) under Directive 2001/42/EC (the SEA Directive), and secondly, whether the hybrid bill procedure, as currently proposed, will comply with the procedural requirements of Directive 2011/92/EU (the EIA Directive). The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment on the first issue, with which Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption and Lord Reed agree. Lord Reed gives the lead judgment on the second issue, with which the other justices agree. Lord Sumption and Lady Hale give separate concurring judgments. Lord Neuberger and Lord Mance give a joint concurring judgment, with which the other justices agree, on the case law of the CJEU which forms the basis of the issues in the appeals. The SEA Directive and the Aarhus Convention The purpose of the SEA Directive is to prevent major effects on the environment being predetermined by earlier planning measures before the environmental impact assessment (EIA) stage is reached. The concept of a plan or programme embodied in the SEA Directive is not something which simply defines the project or describes its merits, but sets the framework for the grant of consent by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects [35 36]. The DNS is an elaborate description of the HS2 project, including the thinking behind it and the governments reasons for rejecting alternatives. However, it does not constrain the decision making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any criteria contained in previous Government statements [38 39]. Setting a framework implies more than mere influence [41]. There is a distinction in the context of the SEA Directive between merely influencing subsequent consideration and setting limits on the scope of what can be considered. Until Parliament has reached its decision, the merits of all aspects of the HS2 project remain open to debate [49]. There is also no reason to assume that plans or programmes covered by article 7 of the Aarhus Convention must also be subject to the SEA procedure. The SEA Directive must be interpreted and applied on its own terms [51 52]. It is not necessary to make a reference to the CJEU on this point [53]. Hybrid bill procedure and the EIA Directive The second question is whether the hybrid bill procedure is compliant with the requirements of the EIA Directive and whether it is appropriate for the court to consider the compatibility of the Parliamentary procedure at the present stage [56]. It was argued that the effect of (1) the whipping of the vote at the second and third readings, (2) the limited opportunity provided by a debate in Parliament for the examination of the environmental information, and (3) the limited remit of the select committee following second reading, is to prevent effective public participation, contrary to article 6(4) of the EIA Directive [73]. It is appropriate to consider the appellants contention at the present stage rather than waiting until legislation may have been enacted. The principal advantages are practical. The Parliamentary procedure will be costly and time consuming. It is convenient to have the point of law decided before further time and expense are incurred on the basis of what is argued to be a mistaken understanding by Government. The court can consider the effect of the Directive without affecting or encroaching upon any of the powers of Parliament [93 95]. The question whether it is in the public interest to proceed with a project of national importance, such as HS2, may be a matter of national political significance. It is partly for that reason that such decisions may be considered appropriate for determination by the national legislature rather than by the ordinary process of development control. The national legislatures of member states are political institutions whose decisions are likely to be influenced by the policy of the dominant Parliamentary party or parties. The influence of party and government policy does not prevent the members of national legislatures from giving careful and responsible consideration to information, including environmental information, which is relevant to the matters that they have to decide. The contention that the procedure currently envisaged by the Government will not permit an adequate examination of the environmental information to take place is unpersuasive. There is no reason to suppose that Members of Parliament will be unable properly to examine and debate the proposed project [108 113]. There is no need for the court to make a preliminary reference to the CJEU before reaching a decision on this matter [117] |
This is an appeal against an order for the deportation of a foreign criminal who has children who are citizens of and resident in the United Kingdom. The appellant was born in Tunisia. In 1996 he married a UK citizen and they had a daughter, born in Northern Ireland, in 1997. Shortly after the birth, the appellant joined them in Northern Ireland on a spousal visa. A year later he was granted indefinite leave to remain. He separated from his wife in 1999, although they have never divorced. In 2006 he had a son with a new partner, but the relationship broke down shortly after the birth. In 2008 the Family Court ordered that he could only have indirect contact with his daughter and that he must obtain the leave of the court before making any further applications for contact. He has not had any contact with his son since 2010. In 2005 the appellant was convicted of two counts of assault occasioning grievous bodily harm, for which he received concurrent sentences of 39 months and nine months imprisonment. Between 2008 and 2010 he was convicted of and sentenced for a series of further offences, including breach of a non molestation order, disorderly behaviour and assaulting a police officer. Following a further incident in 2011 he was convicted of disorderly behaviour, attempted criminal damage and resisting a police officer for which he received three concurrent sentences of five months imprisonment. In 2012 the Home Secretary sought the appellants deportation on account of his convictions. Following inquiries regarding the appellants family circumstances, a deportation order was issued. The appellant appealed claiming that his deportation would breach his and his childrens right to respect for private and family life under article 8 of the European Convention on Human Rights and that the Secretary of State had failed to take sufficient account of the best interests of his children. His appeals to the First tier Tribunal, Upper Tribunal and Court of Appeal were dismissed. The Supreme Court unanimously dismisses Mr Makhloufs appeal. Lord Kerr gives the lead judgment with which the other Justices agree. Lady Hale gives a concurring judgment. Where a decision is taken about the deportation of a foreign criminal who has children residing in the United Kingdom, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. The childs interests must rank as a primary consideration [40]. The question of whether sufficient consideration of the article 8 issues which arise in a particular case can take place through the application of the immigration rules has been thoroughly discussed in the associated case of Ali v Secretary of State for the Home Department [2016] UKSC 60. But the issue in this case is simply whether the Secretary of State was in fact provided with sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children [41]. All the evidence on this issue leads unmistakeably to the conclusion that the appellant did not enjoy any relationship with either of his children and they led lives which were wholly untouched by the circumstance that he was their father. While the possibility of such a relationship developing was a factor to be considered, in this case the material available to the Secretary of State could admit of no conclusion other than it was unlikely in the extreme. The lately produced information that the mother of his son might re consider contact between them partakes of a last throw of a desperate dice [42]. The Secretary of State was therefore not obliged to make yet further inquiries in relation to the appellant and his children beyond those which had already taken place [44]. Lady Hale adds that children must be recognised as rights holders on their own account and not just as adjuncts to other peoples rights [47]. But that does not mean that their rights are inevitably a passport to another persons rights. The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights holders in their own right. His daughter is now 19 and has had no contact with him since she was five [48]. Without a very good reason to the contrary, the Secretary of State is entitled to treat the orders of the family courts as reflecting what is indeed in the best interests of the children concerned. The idea that the Secretary of State should make her own investigation of matters which have already been investigated by the family courts is not only unrealistic, but would also create uncertainty and anxiety for the children. Of course it is good for children, especially children of mixed ethnicity, to have a relationship with both of their parents. But it also good for them to have peace and stability. The daughter is not prevented from establishing a relationship with her father by him living in Tunisia [49]. There was no credible evidence that the appellant had sought contact with his son and nothing to suggest that the appellant has been making a meaningful contribution to his life. He too requires peace and stability and can establish a relationship with his father in future should he wish to do so [50]. There is nothing at all to suggest that the best interests of these children require that their father should remain in the United Kingdom. Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal, but this is emphatically not one of them [51]. |
This appeal relates to disputes which have arisen within a Sikh sect associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and High Wycombe. It raises two questions concerning the trusts on which the Gurdwaras are held. The questions are (i) the extent to which it is open to trustees to alter, or restrict, the terms of the trusts upon which they hold property, and (ii) the extent to which the court can and should refuse to determine issues of religion or religious belief in legal proceedings. In April 1987, fourteen men attended a meeting at which they decided to establish a Gurdwara under the guardianship of His Holiness Brahamgiani, revered 108 Sant Maharaj Baba Gian Sing Ji of Nirmal Kitia Johal. His Holiness was the then holder of the office of Holy Saint (the First Holy Saint), the religious head of the abode of saints at Nirmal Kutia in the Indian village of Johal. The next month a further meeting decided that this Gurdwara, which was to be similar to a Gurdwara which had been acquired in Bradford in 1982, be established under the Supreme Authority of the First Holy Saint. In September 1987 the First Holy Saint approved a property at Oldbury, Birmingham (the Birmingham Gurdwara), which was purchased with a combination of donations from devotees and loans. The First Holy Saint gave the responsibility of managing the Birmingham Gurdwara to the first, second and third respondents (the original trustees), to whom the Birmingham Gurdwara was then transferred. In January 1991 the original trustees executed a Deed of Trust (the 1991 Deed), in which they declared themselves to be the trustees of a religious organisation preaching and practicing the Sikh faith and following the teachings of the First Holy Saint (the Society). Clause 5 of the 1991 Deed (clause 5) empowered the Saint or his successor to remove the Birmingham trustees and appoint new trustees. A month later the constitution of the Society was signed, Clause 10 of which stated that only the First Holy Saint or his successor could make changes to the Societys management committee. In September 1993, a property was acquired at High Wycombe (the Wycombe Gurdwara) and transferred to the sixth and eight appellants and the first and sixth respondents, who were declared to hold the property in accordance with the Societys constitution. In November 2001, the First Holy Saint died and was succeeded by Sant Harbhajan Ji, who died a few months later in March 2002. In July 2003, at a joint meeting of the management committees of the three Gurdwaras, Sant Jeet Singh was recognised as the Third Holy Saint. Following the respondents refusal to execute a new trust deed, Sant Jeet Singh purported to remove them as trustees and replace them with the second eighth appellants. The appellants issued proceedings in the High Court seeking various heads of relief, including removal of the first, second, third and fourth respondents as Birmingham trustees and the removal of the fifth and sixth respondents as Wycombe trustees. The respondents sought to strike out the claim on the ground that it was unjusticiable. Judge Cooke dismissed the application, but the Court of Appeal allowed the respondents appeal, holding that the issue turned on religious beliefs which were not justiciable by the English courts. The appellants now appeal to the Supreme Court. The Supreme Court unanimously allows the appeal. The judgment is given by Lord Neuberger, Lord Sumption and Lord Hodge, with whom Lord Mance and Lord Clarke agree. The issues should all go to trial. Depending on the facts, the powers of the respondents as trustees may have extended to agreeing a provision such as clause 5, and in any event they may not be entitled to challenge its validity. Further, while courts do not adjudicate on the truths of religious beliefs, the courts have jurisdiction to determine disputes over the ownership, possession and control of property held on trusts for religious purposes. During argument four issues emerged as likely to be in dispute: 1) Whether, as the appellants contend, clause 5 is valid insofar as it accords the power to appoint and dismiss trustees on persons other than the First Holy Saint; 2) If the appellants are right on the first issue, whether the reference to the successor of the First Holy Saint in clause 5 is to be read as limited to Sant Harbhajan Ji, the immediate successor to the First Holy Saint, or whether it extended to subsequent successors; 3) If the appellants are right on the first and second issues, whether Sant Jeet Singh is indeed successor to the First Holy Saint; and 4) Whether Sant Jeet Singh has departed from the tenets of mainstream Sikhism and is on character grounds unfit to be the successor [19]. The first issue: was clause 5 of the 1991 Deed invalid? In Attorney General v Mathieson [1907] 2 Ch 383, the Court of Appeal held that where a charitable trust is initially created by donors in general or vague terms, it is open to the trustee to execute a more specific deed which limits the terms of the trust, provided it does not conflict with the terms on which the donors made their donations [26]. Where the principle in Mathieson applies, it would appear that trustees must have the power to include new provisions in the trust deed which they would not normally have the power to impose in the case of a fully constituted trust [33]. It is at least arguable that, where the terms of a trust are so sparse that the trustees have implied authority on behalf of the donors to declare the trusts to which the sums contributed are to be subject, that authority extends to including a provision such as clause 5. It would not be right to resolve this issue at an interlocutory stage for a number of reasons, including the fact that the issue has not been fully pleaded, the parties arguments have changed as the proceedings progressed, the various points have not been fully considered in the courts below, and the resolution of this issue is very likely to be fact sensitive [33 34]. The second issue: the meaning of successor On the face of the 1991 Deed, it appears that, as a matter of language, his successor could be limited to the immediate next Holy Saint, or could extend to each successive Holy Saint. It would not be right to resolve this second issue at this interlocutory stage for much the same reasons given in relation to the first issue [36]. The third and fourth issues: non justiciability generally The term non justiciability refers to a case where an issue is inherently unsuitable for judicial determination by reason only of its subject matter. Such cases generally fall into one of two categories. The first category comprises cases where the issue in question is beyond the constitutional competence assigned to the courts. Once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself justiciable. A paradigm case is the non justiciability of proceedings in Parliament [41 42]. The second category comprises cases based neither on private legal rights or obligations, nor on reviewable matters of public law. These issues are non justiciable if the court were asked to decide them in the abstract; however, such issues must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable [43]. The third and fourth issues: religious doctrine The courts do not normally adjudicate on the truths of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective assessment [45]. The courts have jurisdiction to determine dispute over the ownership, possession and control of property held on trusts for religious purposes. Where people set up a trust to govern the purposes for which property is to be acquired and held, they are performing a juridical act which creates interests that the civil law will protect [49]. |
The appellant suffers from a personality disorder and chronic paranoid delusional disorder. He has a history of admission to psychiatric hospitals. In 2006 he was convicted of arson and burglary. In the light of his mental disorder, he was made the subject of a hospital order under the Mental Health Act 1983 (the Act), which authorised his admission to and detention in a secure hospital, and a restriction order under the Act, which vested the power to discharge him in the respondent (the Minister) or the First tier Tribunal (Health, Education and Social Care Chamber) (the Tribunal). The appellant thereby became a restricted patient under the Act, and was detained in medium secure hospitals. In April 2012 the Tribunal directed that the appellant should be conditionally discharged from hospital and approved a plan that he should move to a registered care home subject to conditions. The appellant took up residence at a care home. On 19 July 2012 the carers responsible for the appellant invited the Minister to consider recalling the appellant to hospital. This was for a number of reasons, including that the appellants mental health had deteriorated, that he was likely to abscond, and that he was likely to breach the conditions of his discharge. The Minister immediately issued a warrant for the appellants recall and the warrant was executed on 19 July 2012. As required by the Act, the Minister referred the appellants case to the Tribunal promptly on 20 July 2012. The warrant set out no reasons for the appellants recall. When the appellant was informed that he was being recalled, he was told only that it was because his mental health had deteriorated. When the appellant was taken into hospital, the staff were unable to explain the reasons for his recall. On 24 July 2012 the Minister wrote a letter to the hospital which contained a number of errors, including the assertion that the recall warrant had not been executed, and the instruction that the appellant should be informed of the reasons for his recall within 72 hours of admission (even though that time limit had already expired). The letter also failed to state any reasons for the appellants recall. On 3 August 2012 (15 days after the appellants recall), he was provided orally with a fuller, adequate explanation for the recall, but was not provided with a written explanation. The appellant challenged the lawfulness of the decision to recall him. His application was dismissed at first instance. Before the Court of Appeal, his primary case was that there was an unlawful failure to explain the reasons for his recall and that (a) that failure affected the legality of his detention, or alternatively (b) that it generated a right to a declaration and damages. The Court of Appeal dismissed his appeal, and the appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appellants appeal. Lord Wilson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agree) gives the leading judgment. Lord Reed gives a short concurring judgment. The Department of Health has issued guidelines on the recall of patients to hospital, which set out a three stage procedure for the communication of reasons (the Policy) [16]. The Minister concedes that the second and third stages of the Policy were not implemented: namely, an adequate explanation was not provided to the appellant within three days of his recall (but only after 15 days), and no explanation in writing was provided within three days (but only months later in the context of these proceedings). The Minister further concedes that this means there has been a breach of the appellants common law right to have the Policy properly applied, and his right under Article 5(2) of the European Convention on Human Rights (ECHR) to be informed promptly of the reasons for his recall [17 21]. Legal sufficiency of the Ministers explanation The explanation provided to the appellant at the time of his recall (i.e. that it was because of his deteriorating mental health) satisfied the first stage of the Policy. It also complied with the Ministers common law duty to provide reasons [24 25]. As for the ECHR, Article 5(2) does not in this respect extend beyond the demands of the common law and, accordingly, there is no violation of that article [26 32]. The Court of Appeal was therefore correct to find that the Ministers explanation at that time was legally sufficient, and it is unnecessary to consider the effect of an insufficient explanation [32]. Effect of the Ministers conceded breaches on the legality of detention The appellant argued that the Ministers conceded breaches rendered his detention between the third and 15th days following his recall unlawful. As to this, there is no link, let alone a direct link (as is required following R (Lumba) and R (Kambadzi) [34 35]) between the Ministers wrongful failure for 12 days to provide the appellant with an adequate explanation for his recall, and the lawfulness of his detention during that 12 day period [39]. Further, the consequences of the appellants argument would be of concern in other similar cases, given the need to detain restricted patients under the Act in appropriate circumstances [40]. The Court of Appeal was therefore right to conclude that the conceded breaches did not render the detention unlawful [41]. Damages and declaration The appellant is not entitled to damages for the breach of his common law right to receive an adequate explanation for his recall within the time set out by the Policy. The breach does not amount to a tort and there is nothing to suggest that damages would have been available in an ordinary action against the Minister [43]. The conclusion is the same in relation to the violation of Article 5(2) ECHR; the appellant has failed to establish that the effects of the breach were sufficiently grave [46]. As for a formal declaration, it would not add anything to the recording of the Ministers concessions in the Courts judgment [46]. Lord Reed adds some observations in relation to the consequences at common law of the Ministers failure to comply with the Policy [48 53]. |
In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights. The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply. The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit. He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed. In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car. Breath tests indicated that he was substantially over the prescribed limit. In his trial the Crown led evidence of the questions and answers at the roadside. In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment. A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight. He was detained the following day, and questioned further while he was in custody. At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview. In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a warrant to search the accuseds flat. They forced entry and found him there. He struggled, and was handcuffed and cautioned. He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat. He was subsequently arrested and taken to a police station where he answered further questions. He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat. In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights. The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible. In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible. In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station. The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law. Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities. Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15]. The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time. There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17]. The courts task in this case is to identify where the Strasbourg court stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20]. In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that. There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair. The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25]. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33]. That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46]. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. It did not do so [35]. The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47). It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so. Police custody or its equivalent creates a need for protection of the accused against abusive coercion. The same is not the case for questioning at the locus or in a persons home [54]. In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55]. The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that. In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c). This is answered in the negative. Ambrose was charged for the purposes of Article 6 when he was cautioned. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67]. M was charged when he was cautioned by the police officer at his home [69]. But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70]. The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively. In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative. He was charged for the purposes of Article 6 by the time the police began their search. The difference with this case was that there was a significant curtailment of Gs freedom of action. He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards. The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71]. The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72]. Lord Kerr would have found the evidence in question to be inadmissible in all three cases. It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128]. In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg. It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129]. As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical. The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136]. The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required [145]. The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158]. |
The issue in this appeal is when the notice period begins to run, if an employee is dismissed on written notice posted to his home address. If the answer is not specified in the contract of employment, is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity to do so? The respondent, Mrs Haywood, was dismissed by reason of redundancy by her employer, the appellant NHS Trust (the Trust). Her contract of employment provided for termination on a minimum period of notice of 12 weeks but not how such notice should be given. On 20 April 2011, the Trust sent a letter giving written notice of termination by recorded delivery to Mrs Haywoods home address. The Trust was aware that she was away on holiday. The letter was collected from the local sorting office by her father in law on 26 April 2011 and left by him in her house that day. She returned from holiday abroad on 27 April 2011 and read the letter. On the unusual facts of this case, the date on which the 12 week notice period started to run was highly material. If it commenced on 27 April 2011, it expired on 20 July 2011, the date of Mrs Haywoods 50th birthday, and Mrs Haywood would be entitled to claim a non actuarially reduced early retirement pension. The High Court and the Court of Appeal (by a majority) upheld Mrs Haywoods case that the notice period only commenced on 27 April 2011. The Supreme Court by a majority of three to two (Lord Lloyd Jones and Lord Briggs dissenting) dismisses the Trusts appeal. Lady Hale, with whom Lord Wilson and Lady Black agree, gives the main judgment and Lady Black adds a further analysis of the case law. The dissenting judgment is given by Lord Briggs, with whom Lord Lloyd Jones agrees. In the absence of an express contractual provision, the court had to determine the implied contractual term as to when a notice takes effect. The Trust argued that there was a common law rule, principally derived from landlord and tenant cases, which provided that notice was given when the letter was delivered to its address. Mrs Haywood relied on the approach of the Employment Appeal Tribunal (EAT) in employment cases to support her case that notice only took effect when it had actually been received by the employee and the employee had either read or had a reasonable opportunity of reading it [12]. Having reviewed the cases relied on by the parties, the majority held that the approach which had been consistently taken by the EAT was correct because: The common law rule in non employment cases was not as clear and universal as suggested. Receipt of the notice was always required, and arguably by a person authorised to receive it. Even after a statutory presumption of receipt at the address was introduced, this was rebuttable. The EAT was an expert tribunal familiar with employment practices, and with the general merits in employment cases. Mrs Haywoods contract with the Trust was concluded when the EAT cases were thought to represent the general law. There was no reason to suppose that this approach had caused any real difficulties in practice. An employer could either make express alternative provision in the contract or ensure notice of termination was received in sufficient time to allow the employment to terminate on a specified day. It was important for both employer and employee, even in dismissal on notice cases, to know whether and when the employment had come to an end. The rule should be the same as for summary dismissal cases [39]. Lady Black, agreeing with this conclusion, reviewed the common law cases in further detail to support the finding that that these cases did not have the effect contended for by the Trust [41 75]. Insofar as any clear principle emerged, it revolved around delivery to the recipients agent, who might be a household servant, professional agent or family member, who would be expected to take in communications for the intended recipient as part of their role [73]. Lord Briggs, dissenting, would have found that the common law cases had long established a rule embedding an implied term into contracts of employment determinable on notice [78]. Such contracts were only a sub species of relationship contracts [79]. The rule for relationship contracts was that written notice of termination was given when the document containing it was duly delivered by hand or post to the address of the intended recipient, regardless of whether either the intended recipient or his agent was there to receive it [81, 100]. The rule had a sensible and even handed policy objective behind it, creating certainty for both parties and representing a fair allocation of risk [118 121]. |
Between October 1952 and September 1958 the Respondent [the MoD] carried out experimental atmospheric explosions of 21 thermonuclear devices in the South Pacific, involving 22,000 soldiers, sailors and airmen [90]. From these servicemen are drawn the majority of the 1011 claimants in this case, most of whom caused their claims to be issued on 23 December 2004 and some of whom did so later [the Veterans]. Some of the claims are brought by the personal representatives of veterans who have sadly died [90]. The Veterans allege that they were exposed to fallout radiation from the nuclear tests and that this exposure has caused illness, disability or death [90]; both exposure and causation are denied by the MoD. The claims were made subject to a Group Litigation Order because they gave rise to common or related issues of fact or law [15]. There is an issue as to whether many of the claims are time barred under the provisions of the Limitation Act 1980, section 11(4) of which provides that an action shall not be brought after the expiration of three years from (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured [2]. The group and the MoD each selected five lead claimants for the trial of the limitation issue [91]. The Veterans alleged that they did not have the requisite knowledge within the meaning of the Limitation Act 1980 until 29 June 2007, some two and a half years after most of them caused their claims to be issued, when a report by Dr Rowland [the Rowland Report] demonstrated an abnormal incidence of chromosomal changes in blood samples of 50 New Zealand veterans, who had served on ships that were no closer to the tests than had been most, if not all, of the Veterans, thus providing objective evidence of exposure to low dose fallout radiation [97]. The Veterans accept that there is no credible evidence to prove that this exposure caused their injuries [25]. The MoD, whilst denying both exposure and that such low dose exposure could cause injury, contended that the Veterans knew the facts alleged more than three years before issuing their claims. At first instance, five lead claimants were found to have issued within the limitation period and Foskett J exercised his discretion under section 33 of the Limitation Act 1980 to allow the remaining five cases to proceed [104]. The Court of Appeal held that nine of the claimants had acquired knowledge more than three years before proceedings were commenced and that Foskett J had erred in the exercise of his discretion under section 33, so that none of the nine claims should be permitted to proceed [105]. The nine claimants appeal to the Supreme Court. This appeal raises three issues: (i) how is knowledge to be defined for the purposes of section 11(4) of the Limitation Act 1980; (ii) is it possible for a claimant to commence proceedings before having acquired the knowledge that would normally cause time to run, and if so what is the proper approach of the court to such proceedings; and (iii) should the court exercise its discretion under section 33 of the Limitation Act 1980 to allow the claims to proceed in the event that they had not been commenced within the limitation period? The Supreme Court dismisses the appeal by a 4 3 majority; Lord Phillips, Lady Hale and Lord Kerr dissenting. The Limitation Act 1980 [the 1980 Act] provides that the limitation period is to be triggered by a claimants actual or constructive knowledge of certain facts [111]. Two questions arise in respect of knowledge: firstly, what is it that the claimant has to know at the date of knowledge? Secondly what state of mind, assessed subjectively or objectively or a mixture of the two, amounts to knowledge for this purpose [30]? What the claimant must know depends on the interpretation of section 14(1) of the 1980 Act, in particular section 14(1)(b) which provides that one of the facts is that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance, or breach of duty [30]. Attributable refers to causation and means capable of being attributed or ascribed to [34], and has been interpreted as directed to a real possibility of a causal link [35]. It is a legal impossibility for a claimant to lack knowledge of attributability for the purposes of section 14(1) after issuing his claim [3, 70]. The Claimant must verify his claim form by a statement that he believes that the facts stated in it are true, which can be regarded as an explicit recognition that he has knowledge for the purpose of section 14(1) [3]; further, the inquiry mandated by section 14(1) is retrospective [4] and is predicated on the assumption that there is a valid cause of action [2]. A claimant is likely to have developed the requisite state of mind to amount to knowledge of the facts specified in section 14(1) when he first came reasonably to believe them [11, 50], that is to say that he held a belief which is more than a mere suspicion, but rather is held with sufficient confidence to justify that he should reasonably begin an investigation into whether he has a valid claim and, if so, how that claim can be established in court [12], and which also carries a degree of substance rather than being the product of caprice [11]. The test is objective, without regard to a claimants personal characteristics, which can be taken into account at the later stage of exercising discretion under section 33 of the 1980 Act [47]. A distinction is to be drawn between knowledge of the essence of a claim and the evidence necessary to prove it to the requisite legal standard [58]. The facts by reference to which limitation are to be assessed are those pleaded or later asserted, and the question is not whether those facts give rise to a good claim in law [86]. Once the requisite knowledge has arisen, evidential difficulties confer no right to a further, open ended, extension of the limitation period [25]. A claimant will not always have acquired knowledge by the date when he first consults an expert [13]. Section 14(3) recognises that some facts may be ascertainable only with the help of experts, so the court will have regard to the confidence and the substance of a claimants belief prior to consulting an expert and the effect on that belief of receipt of the experts report [13]. An expert may assist a claimant in acquiring knowledge of the facts required by section 14 or he may provide evidence to help him substantiate the claim [14]. Application of this test to the facts of the nine lead cases [16 24] drives a conclusion that, prior to three years before issue, each reasonably believed that their injuries were capable of being attributed to the nuclear tests, particularly in light of their many private and public statements about the cause of their conditions, the nation wide campaign for compensation, applications for war pensions and applications to the ECtHR [25], as well as the fact that it was common knowledge from at least the 1980s that exposure to fallout radiation could cause leukaemia, many other forms of cancer, infertility and other serious injuries [63]. The difficulty for the Veterans had been to produce cogent evidence, whether from their individual medical histories or from epidemiological material, that the dose of radiation was sufficiently high to establish a causative link with their injuries [64]. The Rowland Report was evidential, rather than assisting the Veterans in acquiring knowledge of the essence of their claim [64]. The Court of Appeal correctly declined to exercise its discretionary power under section 33 of the 1980 Act to disapply section 11 [26]. Having weighed all the other relevant factors [26] and in light of its unusual advantage in the mass of detailed material summarised by the judge [27], that Court held that the Veterans had very great difficulties in establishing causation. The fact is that the Veterans claims have no real prospect of success and it would be absurd to disapply section 11, only for their claim inevitably to be struck out [27]. The minority considers, however, that knowledge and belief are different concepts [174], and that a claimants subjective belief is not a sensible basis for deciding whether the claim is time barred [168]. A claimant can be said to have knowledge only when he has a reasonable belief that is founded on known fact [141] or objective fact [170]. It is even possible for a claimant to lack knowledge of attributability at the time when he issues his claim so that the limitation period has yet to begin to run [146]. At the time when the Veterans issued proceedings, there were no known facts capable of supporting a belief that their injuries were attributable to exposure to ionising radiation [139], thus none of the claims is time barred. Lord Phillips would have held that the initiation of the group action did not constitute an abuse of process and it would not have been right to strike it out on that basis [153], and, although the Veterans do not have a reasonable prospect of success, the Court of Appeal was correct not to grant the MoD summary judgment in the absence of a formal application [158]. Lord Kerr agrees that it was correct not to strike out proceedings and to refuse to grant summary judgment [212, 214]. |
The issue in the appeal is whether a District Judge qualifies as a worker or a person in Crown employment for the purpose of the protection given to whistle blowers under Part IVA of the Employment Rights Act 1996 (the 1996 Act). If not, is this discrimination against her in the enjoyment of her right to freedom of expression, protected by article 14 taken with article 10 of the European Convention on Human Rights (ECHR)? The appellant was appointed a District Judge by the Lord Chancellor with effect from 6 February 2006. The letter offering her appointment specified the duration, salary, pension and conditions of employment, including as to sitting days, sick pay, maternity leave and conduct. By an Instrument of Appointment the Lord Chancellor approved her to sit at county courts on the Wales and Chester circuit. Major cost cutting reforms took place after 2010. The appellant raised a number of concerns relating to the cuts, in particular the lack of appropriate and secure court room accommodation, her severely increased workload and administrative failures, initially with the local leadership judges and senior court managers, and eventually in a formal grievance. She claims that the handling of her complaints led to a severe degradation in her health, resulting in psychiatric injury and disability. In February 2015 she made a two part claim in the Employment Tribunal, both of which depended on her being a worker within the meaning of s 230(3) of the 1996 Act. Her claim for disability discrimination under the Equality Act 2010 is proceeding, as it is accepted that she is a worker for the purpose of European Union law, from which this claim is derived. Her claim under Part IVA of the 1996 Act is not so derived, and the Employment Tribunal determined as a preliminary issue that she was not a worker under domestic law for the purpose of the whistle blowing provisions. It accepted that she therefore had no protection against the infringement of her right to freedom of expression under article 10 ECHR, but that it was not possible to give effect to s 230(3) so as to give her that protection. Her appeals to the Employment Appeal Tribunal and to the Court of Appeal were dismissed. The Supreme Court unanimously allows the appeal and remits the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act. Lady Hale gives the judgment. Worker under domestic law The appellant argued that she is a limb (b) worker under the definition in s 230(3) of the 1996 Act: namely that she works under a contract whereby she undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business she is undertaking [2 3]. The issue is whether the appellants work is performed pursuant to a contract with the recipient of that work or services, or pursuant to some different legal arrangement. Judges hold a statutory office, and office holders do not necessarily hold office pursuant to a contract [12]. It depends on the intention of the parties, which is reflected in the manner of engagement, the source and character of the rules governing service and the overall context [16]. In the appellants case, the essential components of the relationship are derived from statute and not a matter for negotiation; it is difficult to identify her employer; and the separation of powers is a factor against a contract between a Minister of the Crown and a member of the judiciary. Taken together, these factors do not suggest a contractual relationship [17 21]. Nor are judges in Crown employment. They are not civil servants or the equivalent of civil servants. They do not work under or for the purposes of the functions of the Lord Chief Justice, but for the administration of justice in accordance with their oaths of office [22 25]. Human rights The imposition of detriments, such as the bullying, victimisation and failure to take complaints seriously which the appellant alleges, would be an interference with her right to freedom of speech under article 10 ECHR [26]. A claim under the Human Rights Act 1998 (the HRA) would not enable the appellant to seek the wider relief that a worker could under Part IVA of the 1996 Act [27, 30]. The failure to extend the Part IVA protections to judicial office holders is a violation of the appellants right under article 14 not to be discriminated against in her enjoyment of the rights under the ECHR: (i) the facts of her case are within the ambit of article 10; (ii) she has been treated less favourably than other employees and workers who make responsible public interest disclosures; (iii) her occupational classification is clearly a status within the meaning of article 14; and (iv) exclusion of judges is not a proportionate means of achieving a legitimate aim. There is no evidence that either the executive or Parliament addressed their minds to the exclusion of the judiciary from the protection of Part IVA and no legitimate aim has been put forward [28 37]. The remedy for the incompatibility of the exclusion of the judiciary from the protection of Part IVA of the 1996 Act with the rights under the ECHR is found in the obligation on the courts in s 3 of the HRA to read and give effect to primary legislation in a way which is compatible with those rights. It has been established that it is possible to interpret the definition of a limb (b) worker to include judicial office holders when required to do so by EU law, and it would not go against the grain of the 1996 Act to do so in respect of the protections of Part IVA. This interpretation should also apply to the equivalent provisions in the Employment Rights (Northern Ireland) Order 1996 [39 45]. Accordingly the appeal is allowed and the case is remitted to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act [46]. |
The husband and wife entered into a consent order on 28 July 2010. Part of the order provided that the husband should transfer to the wife his legal and beneficial interest in the matrimonial home subject to the mortgage so that the wife could continue to live there with the two children of the family. In return the wife undertook at para 4.3 of the recitals to discharge all mortgage payments, to indemnify the husband against any liability under it and to use her best endeavours to release him from the covenants under it. Then, crucially, she undertook at para 4.4 of the recitals that, if the husband had not been released from his mortgage covenants by 30 September 2012, she would secure his release by placing the home on the market for sale and proceeding to sell it. On 18 November 2011 the wife, who had (and still has) duly discharged the mortgage payments, issued an application to vary her undertaking at para 4.4. She explained that she had not been able to secure the husbands release from his mortgage covenants and would not be able to do so by 30 September 2012. The children were in schools in the vicinity of their home and it would be gravely damaging to their interests for them to have to move home while still at school. In such circumstances she sought a variation of the undertaking at para 4.4, so as to postpone for seven years her obligation to secure the husbands release from his covenants under the mortgage by sale of the home until 15 August 2019, being the date of their sons 18th birthday. The husband argued that the court had no jurisdiction to hear the wifes application and requested that the court rule on that preliminary issue. He argued that the wifes undertaking was equivalent to an order for sale under section 24A of the Matrimonial Causes Act 1973 (the Act). And he relied on the Court of Appeals decision in Omielan v Omielan [1996] 2 FLR 306 that jurisdiction to vary the latter did not exist where it related to the territory of the property adjustment order. When the wifes appeal from an adverse decision below came before the Court of Appeal it held that its jurisdiction to hear the application was a formal jurisdiction which existed only technically; that scope for its exercise was extremely limited indeed; and that there was no basis for its exercise upon the wifes application. The Supreme Court by a majority of 4 to 1 allows the wifes appeal and holds that jurisdiction exists to hear the wifes application. Lord Wilson gives the lead majority judgment, with which Lady Hale, Lord Kerr and Lord Carnwath agree. Lord Hughes gives a dissenting judgment. The description of the application as being to vary the wifes undertaking is confused. The courts power is only to grant or refuse an application for release from the undertaking. Although the courts exercise of its power may result in something which looks like a variation of an undertaking, if it decides to accept a further undertaking, it is the product of a different process of reasoning [5]. The courts below wrongly concluded that they did not have jurisdiction to release the wife from her undertaking. They failed to distinguish between the existence of the courts jurisdiction to release the wife from her undertaking, and the exercise of its jurisdiction [6]. The case law indicates that there is full jurisdiction to hear the wifes application [12]. Further, in circumstances where the undertaking in para 4.4 could have been framed as an order for sale of the property under section 24A of the Act, variable under section 31(2)(f), it would be illogical for the existence and exercise of jurisdiction to grant release from the undertaking to differ from those in relation to the variation of any such order [17 18]. The equivalence of the wifes para 4.4 undertaking with a section 24A order for sale seems clearly to confirm the existence of the courts jurisdiction to hear her application for release from it [19]. Lord Wilson is unable to subscribe to the Court of Appeals determination of the appeal in Omielan by reference to the non existence of jurisdiction rather than a refusal to exercise its jurisdiction. Where Parliament has conferred jurisdiction on a court, there is no scope for a court to say part of it does not exist. The terms of a financial order are often interlinked and therefore it is difficult to apply the concept of different territories to such an order. The demarcation of territories within the order is no proper criterion for identifying the existence of a jurisdiction [27]. Parliament did not in section 31(7) or elsewhere in the Act make a change of circumstances a condition for the exercise of jurisdiction to vary a section 24A(1) order for sale. However, unless there has been a significant change of circumstances since the order was made, grounds for variation of it under section 31 seem hard to conceive [15]. The court remits to HHJ Waller the inquiry into whether the courts jurisdiction to vary the undertaking should be exercised. In light of the equivalence of the wifes undertaking with a section 24A order for sale, his inquiry will be conducted in accordance with section 31(7) of the Act. He will give first consideration to the welfare of the two children; but it is a consideration which may be outweighed by other factors. He will have regard to all relevant circumstances including in particular, whether the wife can establish a significant change of circumstances since her undertaking was given and whether, and if so to what extent, the husband has suffered, and is likely to continue to suffer, prejudice by remaining liable under his mortgage covenants [29]. If the court finds that the husband has suffered, and/or would be likely to suffer, prejudice as a result of delay in selling the home, the court might favour compensating him by asking the wife to make provision for him out of the ultimate net proceeds as a condition of release [30]. Lord Hughes gives a dissenting judgment, not on the existence of the jurisdiction to vary a section 24A order for sale, or its equivalent achieved via an undertaking, but on the principles for its exercise. It must be kept in mind that the section 24A order is ancillary to a capital order and that final capital orders cannot be varied in their substance (whether or not there is a change of circumstances). Lord Hughes states that the acid test should be whether the application is in substance (impermissibly) to vary or alter the final order or whether it is (permissibly) to support it by working out how it should be carried into effect [54]. The application in the present case is one which attempts to vary, not to carry into effect, the originally agreed and court endorsed order and therefore the Court of Appeal was right to hold that it was bound to fail [57]. Lord Hughes would dismiss the appeal [58]. |
On 25 June 1999 the respondent, Ms Dunhill, was struck by a motorcycle driven by the appellant, Mr Burgin, when crossing the road. She suffered a severe head injury. In May 2002 she issued a claim against Mr Burgin for damages limited to 50,000 for her injuries. On the day of the trial, settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for 12,500 plus costs, which was embodied in a consent order put before the judge. Ms Dunhill had in fact suffered very serious injuries and this settlement represented a gross undervalue of her claim, if she could establish that Mr Burgin had been negligent. In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, who applied for a declaration that she had not had mental capacity at the time of the settlement and that the consent order should be set aside with directions for the future conduct of the claim. Two preliminary issues arose. The first was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. The second was the consequence if legal proceedings were compromised without it being recognised that one of the parties lacked that capacity, so that the requirement in Part 21.10 of the Civil Procedure Rules (CPR) that the compromise must be approved by a court was not complied with. The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal ruled that she had to have capacity to conduct the more complicated action which ought to have been brought and Ms Dunhill had lacked that capacity. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10. The Supreme Court gave permission to Mr Burgin to appeal against both findings. The Supreme Court unanimously dismisses the appeals. It holds that, on the test properly to be applied, Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim against Mr Burgin. The consent order must be set aside and the case proceed to trial. Lady Hale gives the only judgment. Test for capacity The general approach of the common law, now enshrined in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity generally and not globally. On the issue before the court the question was Ms Dunhills capacity to conduct the proceedings. CPR 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. This could not depend on whether that person received good advice, bad advice or no advice at all. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers, and on this test it was common ground that Ms Dunhill lacked that capacity [13 18]. The effect of incapacity It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made without the external check on its propriety required by CPR 21.10. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhills incapacity [22]. A settlement of a claim was an established exception to the general position under English law in respect of a contract made by a person who lacks capacity, which is valid unless this fact was or ought to have been known [23 30]. Although there was a need for finality in litigation, and the difficulty of re opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32 33]. Accordingly the consent order must be set aside and the case go for trial [34]. |
The Town and Country Planning Act 1990 gives a power to local authorities to acquire compulsorily any land in their area if the authority thinks that the acquisition will facilitate the carrying out of development on the land and if it thinks that the development is likely to contribute to the well being of the overall area for which it is responsible. This appeal concerned the proper approach to the exercise of that power in relation to land known as the Raglan Street site which lies immediately to the west of, and just outside, the Wolverhampton Ring Road. Sainsburys Supermarkets Ltd (Sainsburys) owns or controls 86% of this site. Tesco Stores Ltd (Tesco) controls most of the remainder. Sainsburys and Tesco each wished to develop on the land and it was decided to grant outline planning permission to each of them for that purpose. It was clear that, unless the local authority used its compulsory purchase powers in respect of the site, neither of the proposed developments could take place. So Sainsburys and Tesco each sought to persuade the local authority that the power should be exercised in its favour. Tesco controls a site in Wolverhampton City Centre called the Royal Hospital site (RHS). The RHS is in poor condition, and for many years it has been an objective of the local authority to secure the regeneration of the site. Tesco considered that it was not financially viable for it to develop the RHS without subsidy from elsewhere. But in seeking to persuade the local authority that it should exercise the compulsory purchase power in its favour in respect of the Raglan Street site, Tesco promised the local authority (by means of a contractual planning obligation) that it would regenerate the RHS. Tesco explained that promise on the basis that its development at Raglan Street would represent a subsidy at least equal to the loss it would sustain in carrying out the RHS development. The local authority decided that it would make a compulsory purchase order in respect of the part of the Raglan Street site owned by Sainsburys in order to facilitate Tescos proposal. In so doing, it took into account and indeed regarded as decisive in Tescos favour that Tesco had promised to regenerate the RHS. The issue in this appeal was whether it was lawful for the local authority to have done so. The Supreme Court held, by a majority of 4 to 3, that, on the facts of this case, it was unlawful for the local authority to take into account Tescos commitment to regenerate the RHS in resolving to make the compulsory purchase order in respect of the Raglan Street site. The majority judgments: (Lord Walker, Lady Hale, Lord Mance and Lord Collins) Lord Collins (giving the leading judgment on behalf of the majority): Principles derived from cases concerning the matters which may lawfully be taken into account in determining planning applications apply equally to compulsory acquisition for development purposes provided it is recognised that, because of the serious invasion of property rights involved in compulsory acquisition, a strict approach to the application of those principles is required. One of these principles is that it is legitimate for a local authority to take into account off site benefits of a proposed development provided that such benefits are related to or connected with the development itself. In compulsory acquisition, as in planning cases, there must be a real rather than fanciful or remote connection between the off site benefits and the development for which the compulsory acquisition is made (see paragraphs [70] [71]). In the present case, there was only a connection between the proposed development on the Raglan Street site and the benefits from the development of the RHS in the sense that the Council was being tempted to facilitate one development because it wanted another development, or that Tesco was being tempted to undertake one un commercial development in order to obtain the development it wanted (para [72]). The claimed financial connection between the two sites was not such as to amount to a relevant matter, notwithstanding the fact that Tesco was prepared to commit to undertake the regeneration of the RHS by agreement with the local authority (para [75]). Lord Walker (agreeing with Lord Collins, Lady Hale and Lord Mance): A local authority should not be exercising its powers of compulsory purchase in order to make a commercial profit; the dominant aim must be betterment in planning terms (para [82]). In a case such as this where a private interest in land is purchased in favour of another private (i.e. Tescos) interest, the local authority has a direct financial interest in the matter, and a strict approach is called for (para [84]). The reason why, in a case where there is little to choose in planning terms between two rival developers of a site, the local authority must not look to some extraneous benefit which one contender offers, is simply that it is not the right way for a local authority to make a decision as to the exercise of its powers of compulsory purchase, any more than it could choose a new chief executive from a short list of apparently equally well qualified candidates by holding a closed auction for the office (para [87]). Lady Hale (agreeing with Lord Collins, Lord Walker and Lord Mance): Acquiring the whole of the Raglan Street site would facilitate the development of that site. But persuading Tesco to carry out a wholly unrelated development upon another site elsewhere in the city, desirable though that may be for the City and people of Wolverhampton, does nothing to facilitate the development of the Raglan Street site. Rather, it is the other way round (para [93]). Lord Mance (agreeing with Lord Collins, Lord Walker and Lady Hale): A planning authority, when considering a planning application, is only entitled to take into account a planning obligation which the applicant offers if that obligation has some connection with the relevant development, apart from the fact of its offer. There is a useful analogy between the grant of planning permission and the exercise of a power of compulsory purchase under the Town and Country Planning Act 1990, and the considerations admissible in relation to the latter power are no wider than those admissible in relation to the former (para [98]). The minority judgments: (Lord Phillips, Lord Hope, Lord Brown) Lord Phillips: Agreed with Lord Collins and Lord Brown that it was appropriate in this case to draw an analogy with certain decisions relating to the grant of planning permission (para [120]). The effects of those decisions was this: when considering the merits of an application for planning permission for a development it is material for the planning authority to consider the impact on the community and the environment of every aspect of the development and of any benefits that have some relevance. An offer of benefits that have no relation to or connection with the development is not material (para [137]). These principles could properly be applied, by analogy, to a simple case where a local authority is considering whether the public interest justifies the compulsory purchase of land for the purpose of facilitating a development. The development itself must be justified in the public interest and it would be wrong in principle for the local authority to be influenced by the offer by the chosen developer to provide some collateral benefit that has no connection of any kind with the development in question (para [138]). But that analysis did not apply to the present case, in which Sainsburys and Tesco were in competition for the development of the Raglan Street site. The local authority had two decisions to make. The first was whether it should exercise its compulsory purchase powers at all. In taking that first decision the local authority was not entitled to take into account any benefit unconnected to the development proposed. The second was to decide to which of the rivals to sell the land (under a different power in the same Act). In that second decision the local authority was entitled and perhaps bound to have regard to any unconnected benefit offered by the developer (paras [140] and [142]). In this case, the local authority was not, in fact, influenced by the RHS benefit when deciding in principle to use its power of compulsory purchase. The RHS benefit was, however, very material to the decision as to which developer to select, and this in turn determined whose land was to be compulsorily acquired. In these circumstances the RHS benefit was a consideration that was material to the decision that determined simultaneously the developer and the land to be purchased. It therefore could not be said that the decision compulsorily to purchase Sainsburys land was influenced by a consideration that was not material (paras [143] [145]). Lord Hope (agreeing with Lord Phillips): It is plain that the local authority was proceeding on the assumption that, having acquired the land, it would then dispose of it to the preferred developer. The authority was concerned as much with the exercise of the power to dispose of the land as with the exercise of the power to acquire it (para [154]). In this case, the choice as to whose land to acquire was inevitably linked to the choice of the developer to whom the land was to be disposed of when it was acquired. The local authority took those decisions together and was entitled to do so. To hold otherwise would unduly inhibit the exercise of the power of compulsory acquisition in a case such as this, where a site that is in need of development is in divided ownership, the owners are in competition with each other for its development, and there are sound planning reasons for regarding the proposal of one developer as preferable to that of the other (para [158]). Lord Brown: Had an offer such as that made by Tesco to the local authority been made in the planning context it would have been a material consideration in the determination of a planning application because it would have had a sufficient connection with the proposed development which was not de minimis or so minimal as to be immaterial. This was the effect of the planning cases (para [174]). But even if, contrary to that view, the RHS benefit would not have been material in the determination of a planning application, it was nonetheless material in the context of the decisions which the local authority had to take here (para [178] and [180]). The authoritys power of compulsory purchase could not be exercised until the authority had also decided the second question before them: which of the two developers to choose. In reaching that second decision the authority was entitled to take into account the off site benefit, even if it was not connected with the development proposed. It was a material consideration for the purposes of deciding which of the rival developers to prefer and whose land, therefore, should be the subject of compulsory purchase (para [182]). |
This appeal concerns whether an English court has jurisdiction to determine the future level of contact between a child and his mother where the child does not habitually reside in an EU Member State. Under article 12.3 of Council Regulation (EC) No 2201/2003 (Brussels II Revised) parties are able to opt in to the jurisdiction of an EU court which would not otherwise have jurisdiction to determine a childs future. This applies where: (a) the child has a substantial connection with that Member State; and (b) the jurisdiction of the courts has been expressly accepted or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised, and the exercise of jurisdiction is in the best interests of the child. In this case the child had been resident in Pakistan since 2004, although both he and his divorced parents are British citizens and his parents live here. Both the High Court and the Court of Appeal held that an English court had no jurisdiction. The mother appealed. The Supreme Court had two issues to decide: firstly, whether article 12 extended to cases where a child lived in a non EU member state; and secondly, if it did, whether the parties in this case had accepted jurisdiction in accordance with the criteria set out in article 12.3(b). The Supreme Court unanimously allows the appeal and declares that the courts of England and Wales have jurisdiction in this case. The Supreme Court holds that article 12 of Brussels II Revised applies to a child who is lawfully resident outside the European Union. In this case it was clear that the criteria of article 12.3 were satisfied and therefore that the parties had opted in to this jurisdiction. Lady Hale gave the leading judgment. There was a difference of opinion between the Justices on the precise meaning of article 12.3(b) but it was not necessary to decide this issue in order to decide the case.(Paragraphs [17], [35], [45]) On the first issue, if parents opt in to the jurisdiction of an EU court under article 12.3, that court can exercise jurisdiction even if the child does not lawfully reside within the territory of a an EU Member State. Lady Hale reached this conclusion using ordinary principles of construction, concluding that nothing in article 12 limits jurisdiction to children who reside in an EU Member State. This was confirmed by the conclusion that the term third State in other parts of the Regulation (notably articles 12.4 and 61) means a state outside the EU. This is supported by the Practice Guide to the Regulation, as well as other sources emanating from the EU. [17] [20] The Pakistan Protocol (referred to by the Court of Appeal), in which the judiciaries of Pakistan and England agreed it will generally be best for jurisdiction to be exercised in the country of the childs habitual residence, was not directly applicable. In any event such an agreement between judges could not affect the proper interpretation of Brussels II Revised. [41] [44] On the second issue, the criteria under article 12.3 were clearly satisfied in this case. Firstly, under 12.3(a), the substantial connection was satisfied by the fact the childs parents are habitually resident in the UK and they and the child are British citizens. [21] Secondly, jurisdiction had been expressly and unequivocally accepted by the parties under 12.3(b), both before and after proceedings commenced. In particular, the father had accepted jurisdiction by undertaking to bring the child back here if required to do so by the Court. [33] [34] Finally, the exercise of jurisdiction was in the best interests of the child given the presumption in article 12.4 that where a child is resident in certain non EU States it will be in his best interests for jurisdiction to be exercised under this article. It was also relevant that the childs guardian in the High Court considered that the childs future was best decided in this country. [37] [38] The Justices expressed different views on the meaning of the words in article 12.3(b) requiring express or unequivocal acceptance by all of the parties to the proceedings at the time the court is seised. Did this mean before, when or after the relevant proceedings were begun? It was also unclear whether these words describe the time at which parties have accepted jurisdiction or, as argued on behalf of the interveners Reunite, describe the parties whose acceptance is required. The Justices do not express a concluded view as it was not necessary to do so in order to decide this appeal. In this case all the parties had given unequivocal acceptance both before and after the proceedings had begun. The diversity of views indicates that the interpretation is not acte clair and if a case arises where the issue has to be decided it may have to be the subject of a reference to the European Court of Justice under articles 68 and 234 of the EC Treaty. (Lady Hale at paragraphs [23] [32]; Lord Collins at [51] [64]; Lord Kerr at [66] [74]; Lord Clarke at [75] [92]) |
This is a reference of a devolution issue at the request of the Lord Advocate. It is directed to the issue of waiver. The Respondent, B, whose case has not yet gone to trial, has been charged on summary complaint with housebreaking with intent to steal and having in his possession a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971. Before the commencement of a police interview, he was offered legal assistance but declined the offer. His waiver of the right to legal assistance took place without his having received advice on the point from a solicitor In advance of the trial, Bs solicitor lodged a Devolution Minute stating that Bs right to a fair trial under Article 6(3)(c) of the European Convention on Human Rights would be breached if the Crown were to lead evidence of his police interview since, it was claimed, access to a solicitor should be automatic when someone has been detained in police custody. The propositions in the Devolution Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722, in which the Lord Justice Clerk (Gill), delivering the unanimous opinion of the Court, had stated that he could not see how a person could waive his right to legal advice when he had not had access to legal advice on the point. In view of the importance of the question raised by that observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court. The amended reference agreed between the parties sets out the following questions for consideration by the Court: (i) Whether, in principle, it would be incompatible with Article 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed, had been informed of his Salduz/Article 6 rights to legal advice, and, without having received advice from a lawyer, had stated that he did not wish to exercise such rights; (ii) Whether it would be compatible with Bs rights under Articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview. Both parties agreed that question (i) should be answered in the negative. The Appellant argued that question (ii) should be answered in the affirmative. The Respondent disagreed. The Supreme Court, by a 4 1 majority, answers the first question in the reference in the negative, and remits the second question to the sheriff. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment. Article 6 does not expressly state that a person must have had legal advice before he can be taken to have waived the right of access to a lawyer. However, it is clear that the article is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled, so as to give practical effect to the right to a fair trial [11]. The task for the Supreme Court is to identify as best it can the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights. It may be that the way police interviews are currently conducted in Scotland is in need of improvement. But that should not be done by giving a more generous scope to the Convention rights than that which is to be found in the jurisprudence of the Strasbourg court or by laying down fixed rules that may impede the prosecution of crime in Scotland unless they have been clearly identified as such by Strasbourg [5, 6]. In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal [21], and must be attended by the minimum safeguards commensurate to the importance of the right [27]. None of the Strasbourg cases indicate that an accused who acts of his own free will in waiving his right to legal assistance must always have access to legal advice before he can be held validly to have waived that right. This also reflects the position of the Supreme Courts of Canada and the United States [37 44]. There is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police [45]. The statements of the Lord Justice Clerk in Jude to the effect that there is a rule requiring legal advice for the purpose of a valid waiver of the right to legal assistance should be disapproved. Where the detainee, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily [46]. The Strasbourg decisions indicate, however, that in some cases access to a lawyer may well be a prerequisite of a valid waiver. In particular, it must not be taken for granted that everyone understands the rights in question. People who are vulnerable or under the influence of alcohol or drugs may need to be given more than standard formulae if their right to a fair trial is not to be compromised [36 & 47]. What we have been given by Strasbourg is a guiding principle as to what is needed for there to be an effective waiver. Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case [50]. Two suggestions are made for the improvement of the practice that is adopted at present: first, in order to minimise the risk of misunderstanding, police should ask the detainee for his reasons for waiving his right to legal assistance, and record the reasons given. This will provide an opportunity for any obvious misunderstandings to be corrected, though police officers should not go so far as to offer advice to the detainee [49]. Second, police should inform the detainee not only of his right to legal assistance, but also of the arrangements that may be made if he is unable to name a solicitor or is concerned about the cost of employing one [51]. It would not be appropriate to reach a decision on question (ii) in this case. The issue comes before the Court as a reference and not as an appeal. It raises questions of fact and degree which ought properly to be dealt with by the sheriff, after hearing all the evidence on this issue [53]. Lord Kerr would have answered both questions in the negative. No attempt had been made to discover why B had refused to avail himself of legal assistance, and therefore it was impossible to say that this was an unequivocal and informed waiver [128]. Only in exceptional circumstances should statements made by a suspect who has not had access to a lawyer be admitted in evidence [125]. The suggestions made by Lord Hope should be implemented as rules requiring police to obtain reasons from suspects who purport to waive their right to legal assistance. Unless one knows why the decision to waive has been made, it cannot be said to be voluntary, informed and unequivocal [115]. |
In 2012 Mr Macris was the International Chief Investment Officer of JP Morgan Chase Bank NA and, in that capacity, head of the banks Chief Investment Office (CIO International). Part of CIO Internationals function was to manage a portfolio of traded credit instruments called the Synthetic Credit Portfolio. The Financial Conduct Authority (FCA) is responsible for the statutory regulation of the United Kingdoms financial markets, deriving its powers from the Financial Services and Markets Act 2000 (the Act), as amended by the Financial Services and Markets Act 2012. Over the course of 2012 the Synthetic Credit Portfolio made losses of $6.2 billion and, following an investigation, the FCA concluded that the loss was caused by, amongst other things, a high risk trading strategy, weak management of that trading and an inadequate response to information which should have alerted the bank to the problems. The FCA agreed a regulatory settlement with the bank, under which it paid a penalty of 137,610,000. The provisions of the Act governing the imposition of penalties provide for three successive notices to be given to a person or firm under investigation, all of which include extensive reasons for the FCAs actions. Where a regulatory settlement is agreed before service of these notices, the usual procedure is to draft them in identical terms and serve them simultaneously. That practice occurred in this case on 18 September 2013. Where such notices contain material discreditable to particular individuals not party to the settlement, the Act makes provision under section 393 to protect these persons from unfair prejudice. When the notice identifies such a person, they must be given a copy of the notice, to enable them to make representations to the regulator and take the matter before the Upper Tribunal. These notices did not identify Mr Macris by name or job title, but there were multiple references to CIO London management, a category to which he belonged He was not supplied with a copy of the notice served on the bank or given an opportunity to make representations. He brought a claim before the Upper Tribunal, which heard as a preliminary issue the question of whether he was entitled to be notified under section 393. The Upper Tribunal upheld the complaint on the basis that the references to CIO London management would be taken by a reader with relevant experience to refer to the most senior individual involved. The Court of Appeal agreed in the result, but based their reasoning in part on an analogy with the law of defamation. This led them to conclude that persons who operated in Mr Macris field would reasonably have been able to identify Mr Macris from statements made in the notice in conjunction with publicly available material. The FCA appealed to the Supreme Court. By a majority of 4 to 1, the Supreme Court allows the FCAs appeal. Lord Sumption gives the lead judgment, with which Lord Neuberger and Lord Hodge agree. Lord Neuberger adds a concurring judgment and Lord Wilson gives a dissenting judgment. Lord Mance writes a judgment concurring with the majority in the outcome of the appeal, but agreeing with Lord Wilson on the issue of law. Lord Sumption holds that a person is identified in a notice under section 393 if he is identified by name or by a synonym for him, such as his office or job title. In the case of a synonym it must be apparent from the notice itself that it could only apply to one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere. However, resort to information publicly available elsewhere is permissible only where it enables one to interpret (as opposed to supplement) the language of the notice. It is not permissible to resort to additional facts about the person so that if those facts and the notice are placed side by side it becomes apparent that they refer to the same person [11]. Lord Sumption gives five reasons: (i) section 393 defines what fairness requires in the context of notices issued by the FCA [12]; (ii) it is clear from the provision that it must be the reasons contained in the notice which identify the third party and not an extrinsic source [13]; (iii) the Act must be read in a manner which enables the FCA to ensure that a third party is not identified in the notice, when it does not know precisely what information is available elsewhere [14]; (iv) the relevant audience for publication is the public at large, not a specific industry sector specially familiar with the third party or his business [15]; and (v) the suggested analogy with the law of defamation is not helpful given its different purpose to that of section 393 of the Act [16]. Lord Neuberger points out that the wider the scope of section 393(1)(a), the more constraining it will be on the FCAs activities; but the narrower it is the greater the number of individuals who will be at risk of being harmed by notices without any recourse [23]. The question to be asked is: does the notice identify the individual in question? The statutory language appears to stipulate that the person must be identified in the notice, not that he must be identifiable as a result of the notice [25]. Lord Neuberger describes the test as whether the individual is named in the notice, or the description in the notice must be equivalent to naming him. An individual is identified in a document if: (i) his position or office is mentioned, (ii) he is the sole holder of that position or office, and (iii) reference by members of the public to freely and publicly available sources of information would easily reveal the name of that individual by reference to his position or office [26]. Lord Neuberger also points to a number of problems if a wider meaning is adopted: (i) it would be a matter of subjective assessment as to how wide a scope to give it; (ii) it could self evidently lead to disputes; (iii) it could lead to some odd consequences; (iv) it would place the FCA in difficulty from the outset; and (v) it could still lead to arbitrary outcomes [28]. Lord Wilson dissents on the ground that the majoritys approach does not strike a fair balance between individual reputation and regulatory efficiency [44]. The central issue of construction in the appeal relates to the appropriate constituency whether it is ordinary readers or ordinary market operators who would conclude that the individual to whom the notice refers is the applicant [59]. The answer is by reference to the particular sort of damage which a wrong criticism of an individual by a notice is likely to cause him: that from within the sector of the market in which he operates [60]. Lord Wilson agrees in essence with the formulation of Lord Mance: the key question being are the words in the notice such as would reasonably lead an operator in the same sector of the market who is not personally acquainted with the applicant, by reference only to information in the public domain to which he would have ready access, to conclude that the individual referred to in the notice is the applicant [63]? However, in his application of that test, Lord Mance concludes that CIO London management did not equate with or identify Mr Macris, and that no information had been shown to exist in the public domain which, when read with the notice, identified him with CIO London Management. [39]. On this basis, Lord Mance agrees with the majority in the outcome of the appeal. |
This is an appeal in a test case arising from sale and rent back transactions in the north east of England. Home owners like the appellant, Mrs Scott, were persuaded to sell their properties to purchasers who promised them the right to remain in their homes for years as tenants after the sale. The purchasers bought the homes with the assistance of mortgages from lenders such as the respondents, who were unaware of the promises made to the home owners. When the purchasers defaulted on the mortgages, possession proceedings were brought by the lenders. The issue arising in this appeal is whether the home owners have any rights entitling them to remain in occupation of their homes, in addition to any claims they may have against the purchasers who may have defrauded them and their legal advisers. Mrs Scott agreed in 2005 to sell her house to an agent for North East Property Buyers (NEPB) at a significant undervalue, in return for the right to remain in her home indefinitely as a tenant at a discounted rent, with the prospect of further capital sums after ten years. The nominee purchaser for NEPB, Ms Wilkinson, obtained a buy to let interest only mortgage from the respondent (Southern Pacific) on condition that only assured shorthold tenancies of up to one year could be granted and on the basis that there were no existing tenancies. In breach of the terms of the mortgage a two year tenancy was granted to Mrs Scott four days after completion of the sale. Three years later Mrs Scott discovered that a possession order had been made on 17 March 2009 in favour of Southern Pacific, following defaults by Ms Wilkinson on the mortgage. Mrs Scott was joined as a defendant to the possession proceedings and argued that she had an equitable interest in the property from the moment of exchange of contracts, which amounted to an unregistered interest given priority by section 29(2)(a)(ii) of, and Schedule 3, paragraph 2 to, the Land Registration Act 2002 (the 2002 Act) over the lenders charges. The courts below determined as a preliminary issue that she had not. Two questions arose: (i) whether Ms Wilkinson had been in a position at the exchange of contracts to confer equitable proprietary rights on Mrs Scott, as opposed to personal rights only, and (ii) whether, even if she had, the transaction of acquiring the legal estate and granting the charge was one indivisible transaction so that Mrs Scott could not assert against Southern Pacific an equitable interest which had only arisen on completion, in accordance with the decision of the House of Lords in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann). The Supreme Court unanimously dismisses the appeal. Lord Collins, with whom Lord Sumption agrees, finds against Mrs Scott on both issues. Lady Hale, with whom Lord Wilson and Lord Reed agree, holds that the appeal must fail because Ms Wilkinson could not confer equitable proprietary rights on Mrs Scott at any time before completion of the purchase. On this basis the second issue does not arise, but they would have taken a different view on the indivisibility of the transaction had it done so. One of the main objectives of land registration is to create as complete a record of title as possible. Overriding interests, to which the land is subject but are not apparent from the register, are an obstacle to this, but the interests of occupiers continue to be protected in the 2002 Act [36]. The unregistered interests which override registered dispositions under the 2002 Act must be proprietary in nature [59]. A purchaser under a contract of sale is given statutory rights to enforce his or her interest against third parties by registration, but it does not follow that the purchaser can grant proprietary rights [65]. Mrs Scott acquired no more than a personal right against Ms Wilkinson when she agreed to sell her house on the basis of the promise made to her that she could remain in occupation and this is the principal ground on which her appeal fails. Her rights only became proprietary when Ms Wilkinson acquired the legal estate, at which time the grant of the charge in favour of Southern Pacific also took effect as part of one indivisible transaction. Accordingly, the lenders rights are not subject to Mrs Scotts right to occupation [79]. It is not therefore necessary to decide whether the decision in Cann applies to a proprietary equitable interest arising at the time of a contract of sale and it is difficult to see how this question could arise in any future case [80]. The justices do, however, express their views on this as it was the main question canvassed in the courts below and at the hearing. Lord Collins considers that it was implicit in Cann that not just the conveyance and mortgage, but also the contract, were all indivisible parts of the transaction. This does not depend on execution of all three on the same day [85]. Thus even if Mrs Scott had had equitable rights of a proprietary nature against Ms Wilkinson arising on exchange of contracts, the mortgage would have taken priority [89]. Lady Hale does not agree that the finding of an indivisible transaction in Cann extends to the contract of sale, and to include the contract would create confusion [120]. She acknowledges that the decision on the principal ground in the appeal produces a harsh result [95] and is uneasy with the all or nothing approach of the present law. She is glad that the Law Commission is now subjecting the 2002 Act to a wide ranging review, to include the impact of fraud [122]. |
In 2007, VTB Capital plc (VTB), an English incorporated bank, entered into agreements (the agreements) with Russagroprom LLC (RAP), a Russian company. Under the agreements, VTB loaned US$225,050,000 to RAP, primarily to enable RAP to buy six Russian dairy companies and three associated companies (the dairy companies) from Nutritek International Corp (Nutritek). In 2008, RAP defaulted on the loan. VTB claims that it was induced in London to enter into the agreements by misrepresentations made by Nutritek. Mr Konstantin Malofeev, a Russian businessman resident in Moscow, is said to be the ultimate owner and controller of Nutritek, Marshall Capital Holdings Ltd (Marcap BVI), and Marshall Capital LLC (Marcap Moscow). VTB claims that Marcap BVI, Marcap Moscow, and Mr Malofeev are jointly and severally liable for these alleged misrepresentations. To bring proceedings in England, VTB required permission to serve proceedings out of the jurisdiction, because the intended defendants were not resident, or otherwise to be found, within the jurisdiction. After being served, Nutritek, Marcap BVI and Mr Malofeev applied to Mr Justice Arnold for the service to be set aside, largely because England was not considered to be the appropriate forum. In addition to opposing this application, VTB sought to amend its pleaded case to contend that RAPs corporate veil should be pierced with the effect that Mr Malofeev, Marcap BVI and Marcap Moscow would be treated as jointly and severally liable with RAP for breaches of, and/or otherwise subject to remedies to enforce, two of the agreements. Mr Justice Arnold found against VTB on both issues, and, while holding that he had gone wrong in certain respects on the first of those issues, the Court of Appeal dismissed VTBs appeal. VTB appeals on both issues to the Supreme Court. In the meantime, it obtained a worldwide freezing injunction against Mr Malofeevs assets pending the determination of the legal proceedings (the freezing injunction). There are three issues before the Supreme Court: (i) whether the permission granted to VTB to serve the proceedings out of the jurisdiction should remain set aside (the jurisdiction appeal); (ii) whether VTB should be allowed to amend its pleaded case to include the claim based on piercing the corporate veil (the corporate veil appeal); and (iii) whether the freezing injunction should be discharged. The Supreme Court (i) by a majority of three to two (Lord Clarke and Lord Reed dissenting), dismisses the jurisdiction appeal, so that VTB may not serve out of the jurisdiction; (ii) unanimously dismisses the corporate veil appeal, so that VTB is not permitted to amend its pleaded case to include a claim on piercing the corporate veil; and (iii) unanimously discharges the freezing injunction obtained by VTB against Mr Malofeevs assets. The jurisdiction appeal It is incumbent on a defendant challenging jurisdiction to identify the issues concerned and to state as clearly as possible how they arise or may arise in the proceedings [36]. This does not require the defendant to advance a positive case [39]. A defendant is entitled to keep his powder dry in relation to his evidence [90]. Hearings concerning appropriate forum should not involve masses of documents and long argument. It is self defeating if, in order to determine the question of jurisdiction, parties prepare for and conduct a hearing which approaches the putative trial itself [82]. In a case such as this, if a court is not satisfied that England is clearly the appropriate forum in which to bring a claim, then permission to serve out must be refused or set aside [18]. Where a judge has exercised his or her judgment to determine whether England is the appropriate forum, an appellate court should refrain from interfering with that decision, unless satisfied that the judge made a significant error [69]. In this case, the majority consider that there are no grounds which justify interfering with the judges decision, or, if the Court of Appeal was entitled to re exercise the power, interfering with the Court of Appeals decision, on this issue. Whilst the conclusion of the lower courts that Russian law governed the alleged torts was wrong, the correct conclusion that English law governed would not have made any difference. Not only did the judge and the Court of Appeal say as much, but the governing law is a factor of very little, if any, real potency, because the key issues in this litigation will on the face of it be factual not legal [45] [49],[54] [55],[100] [101]. The issues, oral and documentary evidence are focused on Russian witnesses and overwhelmingly on matters which happened in and concern Russia, where they could be considered without translation [62],[66],[154]. The issue of governing law cannot have been decisive in the judges decision [68]. Whilst agreements relevant to VTBs claims contained non exclusive jurisdiction clauses in favour of England, such clauses in this case are, as the judge said, not particularly strong factors in favour of English jurisdiction [65] [66],[105],[111]. There is therefore no basis on which the Supreme Court would be justified in re exercising the power to decide for itself the jurisdictional issue [69],[98],[113],[156]. The minority agree that, where the only challenge that can be advanced depends upon persuading an appellate court to balance the various jurisdictional factors differently, an appellate court should not interfere [229]. They consider, however, that a number of errors of principle were made in the exercise of the power to decide the jurisdictional issue, which require the Supreme Court to reach its own independent conclusion [191],[231],[241]. This is primarily because it is generally appropriate for a claim in tort governed by English law to be adjudicated upon by an English court [219],[233], and the non exclusive jurisdiction clauses also point in the direction of England [221] [222],[234] [235]. In coming to that independent conclusion, the minority consider that England is the appropriate forum for the trial of the dispute [227],[236] [237]. The corporate veil appeal VTB may not amend its pleaded case to include a claim on piercing the corporate veil of RAP in order to attach liability to Mr Malofeev, Marcap BVI, and Marcap Moscow, because VTBs proposed case does not give rise to arguable grounds for contending that the jurisdiction to pierce the corporate veil can be invoked [72],[148],[158],[238],[243]. This is an interlocutory appeal, and so it is unnecessary and inappropriate to resolve the issue of whether, unless any statute relied on in the particular case expressly or impliedly provides otherwise, the court is entitled to pierce the veil of incorporation [130],[158],[238]. On the assumption that the court can pierce the corporate veil on appropriate facts, VTBs case involves an extension to the circumstances where it has traditionally been held that the corporate veil can be pierced [131]. This extension would mean that the person controlling the company could be held liable as if he had been a co contracting party with the company concerned to a contract where the company was a party but he was not, and where neither he nor any of the contracting parties intended him to be [132]. Such an extension would be contrary to authority and contrary to principle [133] [147]. Moreover, the extension is not needed to enable VTB to seek redress from Mr Malofeev: if VTB establishes that it was induced to enter into the agreements by the fraudulent statements which he is alleged to have made, then Mr Malofeev will be liable to compensate VTB [146]. The freezing injunction The worldwide freezing order against Mr Malofeev is discharged, because VTB has not been granted permission to serve proceedings on him [74],[150],[159],[239],[244]. |
Under section 82 Sexual Offences Act 2003 all persons sentenced to 30 months imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and of travel abroad (the notification requirements). There is no right to a review of the necessity for the notification requirements at any time. The respondents are convicted sex offenders subject to the notification requirements. Both brought claims for judicial review claiming that the absence of a right of review of the requirements rendered them a disproportionate manner of pursuing the legitimate aim of preventing crime and thereby breached their right to privacy protected by Article 8 of the European Convention on Human Rights. The Divisional Court granted the respondents claims and made a declaration that s 82 (1) Sexual Offences Act 2003 was incompatible with Article 8. The Court of Appeal dismissed an appeal by the Secretary of State for the Home Department, who then appealed to the Supreme Court. The Supreme Court unanimously dismissed the appeal and repeated the declaration of the lower courts that s 82(1) Sexual Offences Act 2003 was incompatible with Article 8 because it made no provision for individual review of the notification requirements. Lord Phillips (with whom all the members of the court agreed) stated that the issue in the case was one of proportionality. It was common ground that the notification requirements interfered with the offenders rights to privacy, that the interference was in accordance with the law and that it was directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The court had to consider three questions: (i) what was the extent of the interference with the Article 8 rights, (ii) how valuable were the notification requirements in achieving the legitimate aims and (iii) to what extent would that value be eroded if the notification requirements were made subject to review [paragraph 41]? If someone subject to the notification requirements could demonstrate that they no longer posed any significant risk of committing further sexual offences, there was no point in subjecting them to the interference with their Article 8 rights, which would then merely impose an unnecessary and unproductive burden on the responsible authorities [paragraph 51]. The critical issue was whether a reliable risk assessment could be carried out in the case of sex offenders. The research into reoffending rates relied on by the Secretary of State showed that 75% of the sexual offenders who were monitored over a 21 year period were not reconvicted and there was no evidence before the court that showed that it was impossible to identify some at least who posed no significant risk of re offending [paragraph 56]. For various other provisions affecting sex offenders the degree of risk of reoffending had to be assessed. It was obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence could be discounted to the extent that continuance of the notification requirements was unjustified. The existence of review provisions in other countries with similar registration requirements for sex offenders suggested that a review exercise was practicable [paragraph 57]. Accordingly the courts below were correct to find that the notification requirements constituted a disproportionate interference with Article 8 rights because they made no provision for individual review of the requirements. |
In 2003 the Appellant purchased a flat in London for 775,000. To do so, he paid 310,000 from his own resources and was provided with the remaining balance of 465,000 by a mortgage lender, on the basis of false statements he made about his employment record and earnings. In April 2005, that mortgage was redeemed as the Appellant remortgaged the flat to a different mortgage lender. On 10th July 2007 at Southwark Crown Court, the Appellant was convicted of obtaining a money transfer by deception in relation to the false statements he made to the initial mortgage lender. He was sentenced to 80 hours community punishment, and the Crown sought a confiscation order under the Proceeds of Crime Act 2002 (POCA) in respect of the purported economic benefit that the Appellant obtained from his crime. On 25th January 2008 the judge made a confiscation order for 1.54m, which amounted to the increased market value of the flat at that time less the 310,000 paid by the Appellant at the time of the initial purchase. On 25th March 2010, the Court of Appeal reduced the order to 1.11m, which amounted to 60% the percentage of the initial value of the property provided by the mortgage lender as a result of his false statements of the flats increased market value. The Supreme Court, sitting as a bench of seven justices in May 2011, heard argument on whether someone in the position of the Appellant could be said to have gained a benefit from his crime and, if so, how such a benefit should be identified. But the Court then identified a further issue, that is whether the confiscation provisions of POCA could potentially give rise to a confiscation order which breaches Article 1 of the First Protocol (A1P1) of the European Convention on Human Rights (the Convention), which protects the right to peaceful enjoyment of ones possessions. In March 2012, the Court reheard the case in relation to that topic and issues related to it. The Supreme Court unanimously allows Mr Wayas appeal. Lord Walker and Sir Anthony Hughes, with whom Lady Hale, Lord Judge, Lord Kerr, Lord Clarke and Lord Wilson agree, give the leading judgment in which they substitute a confiscation order of 392,400. Lord Phillips and Lord Reed, in their partially dissenting judgment, express the view that the confiscation order should be quashed entirely. The effect of A1P1 jurisprudence is to require that confiscation orders made under POCA must be proportionate to the aims of that Act [11 12, 20]. s.3(1) of the Human Rights Act 1998 requires, so far as it is possible to do so, that legislation must be read and given effect by the courts in a way that is compatible with Convention rights. The Court therefore holds that the Crown Court should only make confiscation orders which would be proportionate in each case [12 16]. However, this does not amount to giving general discretion to judges to fit confiscation orders to the facts and justice of a case [24]. Such discretion was previously removed from judges by Parliament [4]. To assess whether a particular confiscation order would be disproportionate, it is important to note that the aim of POCA is to remove the proceeds of crime from criminals, rather than to act as a deterrent [2, 21 22]. If to make such an order would effectively constitute an extra punishment, such as in a case where a defendant has already restored the losses his crime caused to the victim and has therefore gained no benefit, it would be disproportionate for the court to do so [28 29]. However, in the present case the Appellant gained a benefit in the form of an increase in value of the flat that his fraud enabled him to buy. It is therefore not a case in which any confiscation order would be disproportionate [35]. The Court identifies the property initially obtained by the Appellant as a result of or in connection with his crime, under s.76(4) POCA, as the bundle of rights and liabilities arising from the contractual arrangements made between the Appellant, the vendor and the mortgage lender prior to completion of the purchase, which had no market value. To say he obtained the 465,000 loan is legally inaccurate, as it was never his or in his possession [53]. To say he obtained the whole flat ignores his 310,000 payment, would be disproportionate, and neither a fair nor a purposive application of s.76(4)[46 47]. In situations where a defendant derives further property for example, by sale or mortgage from the property that he initially obtained by his crime, s.80(3) POCA operates to enable the courts to trace the derived property back to the initially obtained property. [56 58]. This enables the courts to value the benefit of the crime in such cases, and is why the Court required to identify the property initially obtained by the Appellant in this case [43 44]. s.79(3) POCA requires that lawfully co existing interests in property be valued individually. As such, the Court holds that the Appellants interest in the flat, at the time the confiscation order was made, was a limited interest subject to the mortgage lenders co existing interest in the flat. However, s.79(3) must not apply with the effect that a defendant who perpetrates an acquisitive crime, such as theft, gains an essentially worthless interest because the right of restoration of the true owner falls to be deducted as a co existing interest. If that were so, the value of property obtained by a defendant in such cases would invariably be nil, rendering the confiscation provisions of POCA ineffectual [64 69]. The benefit that the Appellant obtained from his crime following completion of the purchase, which could be traced back to the bundle of rights and liabilities he obtained prior to completion, was 60% of any increase in the flats market value over its acquisition price. This percentage corresponds to that of the initial acquisition price of the flat which, in the form of the loan of 465,000, he obtained dishonestly [70]. There was no evidence before the court as to other assets which at the confiscation date represented the sum that the Appellant realised from the remortgage, so this cannot be considered as part of his benefit [74]. Noting a minor adjustment to account for the Appellants repayment of part of the principal sum secured by the remortgage, the Court therefore substitutes a confiscation order of 392,400 [76 81]. Lord Phillips and Lord Reed agree with the most important aspect of the majority judgment, namely their analysis and resolution of the A1P1 issues arising from POCA. Their dissent pertains to the way POCA should apply to mortgage transactions in view of that analysis [82 83]. Applying the language of s.76(4) POCA, Lord Phillips and Lord Reed identify the property initially obtained as the flat itself [104 109]. Accounting for the co existing interest of the lender under s.79(3), the value of that property to the Appellant was 310,000, which was the amount he himself paid upon purchase [110]. Paradoxically, the more principal a defendant has repaid, the greater the value the property will be to him under POCA and therefore the greater the confiscation order [113]. To avoid each of these POCA effects leading to a disproportionate confiscation order where they arise, the judge should tailor that order under A1P1 [108, 111, 113]. Further, Lord Phillips and Lord Reed do not agree with the majority that the Appellants benefit under POCA was 60% of the flats increase in value over the acquisition price [95 96]. Applying the express provisions of POCA, his benefit was 987,400, which is the difference between the flats value and the mortgage at the time the confiscation order was made. However, to confiscate this sum would be disproportionate [114]. In reality, the benefit he obtained was the extent to which the terms of his mortgage loan were more generous due to his misrepresentations. That figure could be calculated by the Crown Court if the case was remitted to it, but it would be just to quash the order in the circumstances of this case [115 125]. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided cases/index.html |
By a Treaty signed at Athens on 16 April 2003 (the Athens Treaty), ten Accession States became member states of the EU. The Act of Accession, annexed to the Athens Treaty, permitted the existing member states to apply national measures regulating access to their labour markets by nationals of the eight most populous Accession States (the A8 States) which included Latvia. It required the existing member states to apply measures, for an initial period of two years from the date of accession, regulating access to their labour markets by Latvian nationals. The existing member states were permitted to continue to apply such measures until the end of the five year period following the date of the accession. An existing member state maintaining such measures at the end of the five year period was permitted, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission to continue to apply these measures until the end of the seven year period following the date of accession. The Act of Accession was given effect in the domestic law of the UK by the European Union (Accessions) Act 2003 and the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the 2004 Regulations). The 2004 Regulations established the Worker Registration Scheme (WRS) which obliged any national of an A8 State to register before starting employment and before taking up any new employment. Each registration incurred a fee of 90 and the obligation to register continued until the worker had worked for 12 months. Failure to register work in accordance with the WRS would mean that the individual would not derive from that work a right to reside in the UK. In 2009 HM Government asked the Migration Advisory Committee (MAC) to advise it in relation to the continuation of the WRS. In the light of the MACs advice, the Government decided to extend the measures applicable to nationals of the A8 States for a further two years. The central issue in this case is whether Ms Tamara Gubeladze (the respondent), a Latvian national living in the UK, is entitled to receive state pension credit. The respondent came to the UK in 2008 and worked for various employers between September 2009 and November 2012. In the periods when she was not working she was a jobseeker. She was issued with a registration certificate under the WRS on 20 August 2010. Her employment before that date was not covered by the certificate. On 24 October 2012, the respondent made a claim for state pension credit. The basis of her claim was that she had a right of residence in the UK under regulation 5(2) of Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), (the 2006 Regulations), which implement article 17(1)(a) of Directive 2004/38/EC (the Citizens Directive), as a person who had retired, having pursued activities as a worker for at least a year in the UK, and having resided continuously in the UK for three years. The Secretary of State for Work and Pensions (the Secretary of State) rejected her claim on the ground that the requirement of three years continuous residence required three years continuous residence which meant a right of residence under the Citizens Directive. Since the respondents asserted right of residence during that time was as a worker, but she had not been registered under the WRS for part of that period, the Secretary of State considered that she had not resided in the UK pursuant to a right of residence conferred by the Citizens Directive and therefore did not meet the three year residence requirement in regulation 5(2) of the 2006 Regulations. The respondents appeal to the First tier Tribunal was dismissed on jurisdictional grounds. On appeal to the Upper Tribunal, it held that the First tier Tribunal had had jurisdiction to hear the appeal and it re made the substantive decision. It allowed the respondents appeal on two distinct grounds. First, it held that article 17 of the Citizens Directive, and therefore regulation 5(2)(c) of the 2006 Regulations, did not require that the three years continuous residence be in exercise of rights under the Citizens Directive. Actual residence was sufficient. Secondly, it held that the decision to extend the WRS in 2009 was disproportionate and therefore unlawful. On that footing, the respondents residence in the UK at the relevant time had not involved any breach of any applicable valid domestic law and so was to be regarded as legal residence for the purposes of the 2006 Regulations. The Secretary of State appealed to the Court of Appeal which dismissed the appeal. In the Court of Appeal, the Secretary of State succeeded in her appeal in relation to the first point, with the Court holding that the word reside in article 17(1)(a) of the Citizens Directive meant legally reside in the requisite sense; but the Court held that the extension of the WRS was disproportionate and therefore incompatible with EU law. The Secretary of State appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Lloyd Jones and Lord Sales give the sole judgment with which the other Justices agree. (1) Is the decision to extend the WRS open to challenge on grounds of proportionality? The Secretary of State submits that the extension of the WRS did not interfere with or derogate from any pre existing protected interest, so it was not subject to any requirement of proportionality under EU law [27]. The Court considers that the question at the heart of this issue is whether the Act of Accession created relevant protectable interests by conferring rights of EU citizenship on the new EU citizens from the A8 States subject to initial, tapering exceptions imposed by the existing member states, or whether it should be regarded as providing for only such rights as may be conferred by the existing member states during the transitional period. The House of Lords in Zalewska v Department for Social Development [2008] UKHL 67 took the former view [32]. The Court agrees. It considers that there was no intention under the Act of Accession to confer an unfettered right to derogate from general principles of freedom of movement. On the contrary, derogation from those principles must be subject to the principle of proportionality in EU law [35]. This conclusion is supported by the scheme of the relevant instruments [33] and the purpose of the measures [35]. (2) If the decision to extend the WRS is open to challenge on grounds of proportionality, did the Upper Tribunal and the Court of Appeal err in their approach and conclusion on this issue? It is significant that the Secretary of State has simply relied upon what is said in the MAC report of April 2009. She has not filed evidence to explain any distinct reasoning as to why the extension of the WRS was justified, nor to point to any additional relevant factors other than those taken into account by the MAC in its report [49]. This poses problems for the Secretary of State because the MAC was not asked to consider whether an extension of the WRS would be proportionate in terms of EU law and it expressed no view about that [50]. The leading decision of this Court on the principle of proportionality in EU law is now R (Lumsdon) v Legal Services Board [2015] UKSC 41 [57]. This explains that the principle applies according to a three stage test. As regards the first stage of this test, the Court considers that the continuation of the WRS is suitable or appropriate to achieve the objective pursued [66]. The MAC report showed that extending the WRS would have a material, though small, effect in mitigating the serious disturbances to the UK labour market by reducing the flow of workers from A8 States which would otherwise occur [68]. No issue arises in relation to the second stage. However, the Court finds that the third stage of the proportionality analysis (sometimes called proportionality stricto sensu) is not satisfied. According to the assessment in 2009 the extension of the WRS would have only a small and rather speculative mitigating effect in relation to the serious disturbances in the UKs labour market, as found by the MAC, whereas the burdens and detriments it would impose on employers and A8 nationals working in the UK were substantial and serious [70]. The result is that the extension of the WRS in 2009 was a disproportionate measure which was unlawful under EU law [74]. On the basis of the Courts rulings on Issues 1 and 2, the appeal falls to be dismissed. (3) If the Secretary of State succeeds on Issue 1 or Issue 2, does article 17(1)(a) of the Citizens Directive require a person to show that, throughout the period of continuous residence, she enjoyed a right of residence under that Directive? Although resolution of this issue is not necessary for the determination of the present appeal, the Court considers that it should deal with it since the interpretation of article 17(1)(a) may be important in other cases [79]. The Court concludes that, on a textual interpretation of the relevant provisions, the concept of residence as referred to in article 17(1)(a) is factual residence [81]. This interpretation is reinforced by the purpose of the Citizens Directive, which is to enhance existing rights of free movement and residence and not to subject them to new restrictive conditions [82]. For these reasons, the Upper Tribunal arrived at a correct interpretation of article 17(1) in holding that residence in article 17(1) refers to factual residence rather than legal residence in the specific sense which that term bears in the context of the Citizens Directive [92]. (4) If article 17 of the Citizens Directive requires legal residence in the relevant sense, is actual residence sufficient for the purposes of the 2006 Regulations? As the Court holds that the term residence in article 17(1)(a) has the meaning set out above, this issue does not arise [93]. For the reasons set out in the judgment, the Court would dismiss the Secretary of States appeal [94]. |
The appellants are the next of kin of Martin McCaughey and Dessie Grew, who were shot and killed by members of the British Army on 9 October 1990. They believe that the men were the victims of a shoot to kill policy. In 1994 the Director of Public Prosecutions decided that no prosecutions should be brought and the papers were passed to the Coroner. Some preparatory steps have been taken but for various reasons the inquest into these deaths have still to take place. The appellants seek a declaration that the scope of the inquest should comply with Article 2 of the European Convention on Human Rights (the Convention) and thereby extend to an examination of the planning and control of the operation that led to the deaths. Article 2 (1) provides that Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Article 2 gives rise not only to a substantive obligation on the state not to kill people but also a procedural obligation to carry out an effective investigation into the circumstances of the deaths (the procedural obligation). It has been possible since 1966 for an individual to pursue a complaint that the United Kingdom has breached its obligations under Article 2 to the European Court of Human Rights (the ECtHR) if domestic law does not provide a remedy. The issue arising in these appeals is whether the appellants are entitled to bring a domestic claim under the Human Rights Act 1998 (the HRA), which came into force on 2 October 2000. In 2004 the House of Lords held in In re McKerr [2004] UKHL 12 that the procedural obligation to investigate a death was triggered by the death. Investigations into deaths occurring before 2 October 2000 were not therefore within the reach of the HRA, as it was not retrospective. In 2009 the Grand Chamber of the ECtHR extended the effect of Article 2 in ilih v Slovenia (2009) 49 EHRR 996, ruling that it imposed a freestanding procedural obligation, which in certain circumstances arose even where (as in that case) the death occurred before the member state had ratified the Convention. In this case the Coroner assigned to conduct the inquest made a preliminary ruling as to its scope on 1 December 2009. He proposed to consider the purpose and planning of the operation in which the deceased met their deaths. The Chief Constable of the Police Service of Northern Ireland asserted that as there was no requirement to comply with Article 2 under the HRA (in the light of McKerr) the scope of the inquest was restricted to establishing by what means the deceased came to their deaths. On the appellants application for a declaration, the High Court and Court of Appeal in Northern Ireland held that they were bound by McKerr to hold that the HRA did not apply to the appellants claims, even if that decision was now inconsistent with ilih. The Supreme Court by a majority (Lord Rodger dissenting) allows the appeal and holds that the Coroner holding the inquest must comply with the procedural obligation under Article 2. The Convention is a living instrument and the ECtHR has over time extended the ambit of Convention rights in many areas. Article 2 is an example of this. The procedural obligation was first identified in 1995. In 2001 (in Moldovan v Romania) the ECtHR held that the procedural obligation was derived from the deaths, and the Convention would only apply to the procedural obligation if it applied also to the substantive obligation. This reasoning was echoed by the House of Lords in 2004 in McKerr on the question of whether the HRA could apply to the procedural obligation when it did not apply at the time of the death [5]. The Grand Chamber of the ECtHR departed from its reasoning in Moldovan in ilih in 2009. It held that in certain circumstances Article 2 imposed a freestanding or detachable obligation in relation to the investigation of a death which applied even when the death itself had occurred before the member state ratified the Convention. Those circumstances included where a significant proportion of the procedural steps would take place after the Convention had come into force [50]. As a matter of international obligation, therefore, it is now apparent that the UK must ensure that the inquest which is the subject of this appeal complies with Article 2 as far as this is possible under domestic law [51][82]. The ambit of the HRA has to be interpreted by reference to Parliaments presumed intention on enactment concerning future developments by the ECtHR of Convention rights. As to this, two principles could be detected, which were potentially in conflict. The first was that the HRA should not operate retrospectively. The second was that its ambit should mirror that of the Convention, so that claims could now be brought in the UK which would otherwise be permitted before the ECtHR. The first principle prevailed in McKerr. That case was argued on the basis that Article 2 imposed a continuing procedural obligation linked to the death. ilih made it clear, however, that if a State held an inquest, it was under a freestanding obligation to ensure that it complied with the procedural obligations of Article 2. In the light of this, Parliament could be presumed to have intended that there should be a domestic requirement to mirror the international requirement which now applies [60 62]. In practice, comparatively few inquests will be affected by this ruling, given the ten years which have already passed since the HRA came into force [102] Lord Rodger dissented, considering that ilih was irrelevant to the interpretation of the HRA and that the decision of the majority involved adding a transitional provision to the HRA which for policy reasons Parliament had not included [161] Lord Hope agreed with him that there was no right in domestic law to an Article 2 compliant inquest in respect of deaths occurring prior to 2 October 2000. However, he agreed with the majority that where the state has decided to hold an inquest into such a death, that inquest must comply with Article 2 [75]. |
These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64] |
The father of a young girl (called Amelia in the judgment) successfully appealed against a placement order obtained by a local authority for Amelias adoption without her fathers consent. The Court of Appeal ordered the local authority to pay the fathers costs of the appeal. The issue arising on this appeal is whether it was right to do so, given the principle confirmed by the Supreme Court in In re T (Care Proceedings: costs) [2012] UKSC 36 that in general local authorities should not be ordered to pay costs in care proceedings. Amelias father married her mother in 2002 but they separated in 2007 before she was born. Amelia lived with her mother. Care proceedings were commenced as a result of concerns on the part of the local authority that Amelia and her other sibling and half siblings had suffered or were likely to suffer significant harm owing to a lack of proper parental care from their mother. The father had had only limited contact with the children. The local authority considered that he did not have the capacity to meet Amelias high level of need and, with the support of the childrens guardian allocated in the care proceedings, sought a closed adoption for her (ie without contact with her birth family). The judge at first instance accepted the local authoritys opinion and made the placement order. The placement order was overturned by the Court of Appeal on the basis that the judge had been wrong to make the order without further assessment of the situation of the father and child, and had not adequately articulated her reasons. Since then further assessment has taken place and Amelia has now been placed with her father under a child arrangements order. In bringing the appeal the father incurred legal costs assessed in the sum of 13,787. The Court of Appeal ordered that the local authority should pay those costs because it had resisted the appeal, and in order not to deter a parent from challenging decisions which impact on the most crucial of human relationships. It held that the principle in In re T was not applicable to appeals. The local authority appealed to the Supreme Court in relation to the costs order only, and on the basis that whatever the outcome, it would not seek to recover the costs awarded and paid to the father. The Supreme Court unanimously allows the appeal by the local authority and sets aside the costs order made in the Court of Appeal. Lady Hale gives the only judgment. In re T upheld the general practice of not awarding costs against a party, including a local authority, in childrens proceedings, in the absence of reprehensible behaviour or an unreasonable stance. It held that local authorities should not be deterred from their statutory duty to protect children by bringing proceedings. In re T was different from this case, in that it involved a first instance fact finding hearing rather than an appeal; and the costs of interveners who merely wished to clear their names of abuse allegations, rather than of parents who wished to care for the child themselves [13]. The question was whether these distinctions were material. The general rule that in civil proceedings the unsuccessful party will be ordered to pay the costs of the unsuccessful party does not apply to first instance or appellate proceedings about children [15]. For many years the practice in such proceedings has been to make no order in the absence of exceptional circumstances. The only winner should be the child and no one should be deterred by the risk of having to pay the other sides costs from playing their part in helping the court achieve the right solution [21]. It is important for the parties to be able to work together in the interests of the children during and after the proceedings, which stigmatising one party as the loser does not assist [23]. An order to pay costs may reduce the resources available to look after the child or, for a local authority, reduce the budget for the protection of other children [24]. It is irrelevant whether a party is publicly funded or not [25]. Parents are always entitled to resist the claim of the state to remove their children from them, but it does not follow that the local authority is unreasonable in seeking to protect the child if it loses [28]. On an appeal different considerations will apply when assessing whether a party has acted unreasonably but the principle is the same [29]. In re T did not rule out the possibility of other circumstances in which an award of costs in care proceedings might be appropriate [31] provided that a local authority was not put into a worse position than private parties [32]. Nor should it be put in a better position. The object of the exercise is to achieve the best outcome for the child and there may be cases where the welfare of the child would be put at risk if a costs order is not made [33]. In this case it is not suggested that the local authority has behaved in any way reprehensibly towards Amelia or her father [35]. The suggestion that it should not have opposed the appeal because of the deficiencies in the first instance judgment is unwarranted and the Court of Appeal would have been surprised had the local authority failed to respond to the appeal [36]. None of the exceptions to the general approach to awards of costs in children cases applies in this case and the appeal (with the assurance that the local authority has given as regards the fathers costs in this case) is therefore allowed [39]. |
Section 64 of the Police and Criminal Evidence Act 1984 (PACE) required the destruction of samples or fingerprints taken from a person in connection with the investigation of an offence if he was cleared of that offence. Section 64(1A) of PACE, enacted by section 82 of the Justice and Police Act 2001 (the 2001 Act), replaced that statutory obligation to destroy data with a discretion. Section 64(1A) provides that samples taken in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken. Section 64(1A) was supplemented by guidelines issued by the Association of Chief Police Officers (ACPO). These guidelines provided that data should be destroyed only in exceptional cases. The polices retention policy was challenged in R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 (Marper UK). The claimants argued that the retention by the police of their finger prints and DNA samples was incompatible with article 8 of the European Convention on Human Rights (the ECHR). The majority of the House of Lords held that retention did not constitute an interference with the claimants article 8 rights and they held unanimously that in any event any such interference was justified under article 8(2). However, in 2008, the European Court of Human Rights (ECtHR) disagreed: see S and Marper v United Kingdom (2008) 48 EHRR 50 (Marper ECtHR). It found the indefinite retention of data to be an interference which was not justified under Article 8(2). The Governments immediate response was to remove children under the age of 10 from the database. They then opened a consultation period to consider the appropriate legislative reform. This resulted in legislation which, following the change of government in May 2010, was not brought into force. The Coalition Government is promoting new legislation to take account of the ECtHRs judgment. In December 2007, GC was arrested on suspicion of common assault on his girlfriend. He denied the offence. A DNA sample, fingerprints and photographs were taken after his arrest. On the same day he was released on police bail without charge and was subsequently informed that no further action would be taken. In March 2009, C was arrested on suspicion of rape, harassment and fraud. His finger prints and a DNA sample were taken. He denied the allegations. He was charged in respect of the rape allegation but no further action was taken in respect of the harassment and fraud allegations. In the Woolwich Crown Court in May 2009, the prosecution offered no evidence and C was acquitted. In both cases, the appellants requested the destruction of the data taken. Their requests were refused as there were no exceptional circumstances within the meaning of the ACPO guidelines. The appellants issued proceedings for judicial review of the retention of their data on grounds that, in light of Marper ECtHR, its retention was incompatible with their article 8 rights. In the circumstances, the Divisional Court (Moses LJ and Wyn Williams J) dismissed the applications for judicial review and granted a certificate that the cases were appropriate for a leapfrog appeal to the Supreme Court: [2010] EWHC 2225 (Admin). The Supreme Court, by a majority, allows the appeals (Lords Rodger and Brown dissenting). Lord Dyson gives the lead judgment. The majority grant a declaration that the present ACPO guidelines are unlawful because they are incompatible with article 8 of the ECHR. They grant no other relief. Interpretation of section 64(1A) of PACE It is common ground that Marper UK should be overruled. It is also agreed that in light of Marper ECtHR, the indefinite retention of the appellants data under the current retention policy is a breach of article 8 ECHR. The only issue in these appeals, therefore, is what the court should do about that in the present circumstances. Section 3 of the Human Rights Act 1998 (HRA) requires the court, insofar as it is possible to do so, to interpret legislation in a way which is compatible with Convention rights. It is uncontroversial that the statutory purpose of section 64(1A) was to remove the requirement to destroy data after it had served its immediate purpose so as to create a greatly extended database. The extended database was to facilitate the prevention of crime, the investigation of offences and the conduct of prosecutions. However, this does not mean that Parliament intended that, save in exceptional circumstances, the data should be retained indefinitely. Rather, Parliament conferred a discretion on the police to retain data. The natural meaning of the word may in section 64(1A) is permissive not mandatory. There is no reason to suppose that Parliament must have intended its statutory purpose to be achieved in a disproportionate way so as to be incompatible with article 8: [23] [24], [88] [89]. The police were entrusted with setting out the precise means of achieving the statutory purpose: [26]. There is no reason in principle why the police, with the input of the Secretary of State, should be less well equipped than Parliament to create guidelines for the exercise of this power: [40] [44]. Accordingly, it is possible to read section 64(1A) in a way which is compatible with article 8 ECHR as interpreted in Marper ECtHR. A declaration of incompatibility is not appropriate and section 6(2)(b) of the HRA is not engaged: [35], [55], [69]. Lords Rodger and Brown dissent. They would have dismissed the appeals. In their view, the history shows that Parliament's purpose in enacting section 64(1A) was to ensure that in future samples taken from suspects would be retained indefinitely: [94] [97]. Therefore, the police had no choice but to retain the data: [108] [109]. In their view, it is not possible to interpret section 64(1A) in accordance with section 3 HRA: [115], [146] [147]. However, since the police could not have acted differently in substance, what they did and what they continue to do, falls within section 6(2)(a) or section 6(2)(b) HRA and is lawful: [119]. Appropriate relief The present intention of the government is to bring the new legislation into force later this year. In these circumstances, in relation to biometric data it is sufficient to grant a declaration under section 8(1) HRA that the present ACPO guidelines are unlawful because they are incompatible with the ECHR. Where Parliament is seised of the matter, it is not appropriate to make an order requiring a change in the legislative scheme within a specific period or an order requiring destruction of data: [45] [49], [73], [91] [92]. It is, however, open to ACPO to reconsider and amend the guidelines in the interim: [73], [81], [90]. Lord Rodger would have preferred to grant a declaration of incompatibility under section 4 HRA: [121]. In relation to the photographs of GC, in view of the manner in which the issue was raised in the Divisional Court and the consequent lack of any substantive judgment, the Supreme Court expresses no opinion on this part of the appeal: [50] [51]. |
The Respondent is a citizen of Jamaica. He arrived in the UK on 7 May 2010 on a one month visitors visa. On 14 October 2010 he applied for asylum on the ground that he is homosexual and feared persecution if he returned to Jamaica. On 20 October 2010, he was detained pending a decision on removal. This was done pursuant to a fast tracking procedure as Jamaica was on the list of states designated under s 94(4) of the Nationality, Immigration and Asylum Act 2002 (the Act). Jamaica was added to the s 94(4) list by article 3 of the Asylum (Designated State) Order 2003 (SI 2003/970). This was done pursuant to the Secretary of States power in s 94(5) of the Act as it was believed that the following conditions were met: (a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdoms obligations under the Human Rights Convention. Jamaicas inclusion on the s 94(4) list meant that asylum or human rights claims from individuals entitled to reside in Jamaica were required to be certified by the Secretary of State as clearly unfounded unless the Secretary of State was satisfied that this was not the case (s 94(3) of the Act). The effect of this was that appeals made by applicants against immigration decisions in relation to clearly unfounded claims would have to be brought from outside the UK (s 92 of the Act). The Respondents complaints that it was unlawful to detain him and that the fast tracking process was unsuitable for his case were rejected by the Secretary of State. As a result, on 15 November 2010 the Respondent issued a claim for judicial review seeking declarations on two grounds: (i) his detention was unlawful; and, (ii) the decision to include Jamaica on the list in section 94(4) of the Act was unlawful. On the same day, the Home Secretary refused the Respondents claim for asylum but did not certify it as clearly unfounded. This meant that he could appeal the decision whilst remaining in the UK. The Respondent was released from detention on 24 November 2010. On 4 February 2011, the First Tier Tribunal upheld his claim that he was homosexual and at real risk of persecution if returned to Jamaica. The Deputy High Court Judge, Mr Nicholas Paines QC, dismissed both of the Respondents grounds. The Court of Appeal allowed, by majority of two to one, the Respondents appeal on whether Jamaica should be designated under section 94(4). It held unanimously that his detention had been unlawful on other grounds. The Home Secretary appealed to the Supreme Court solely on whether Jamaica should be included in the section 94(4) list. The Supreme Court unanimously dismisses the appeal. Lord Toulson (with whom Lady Hale, Lord Sumption and Lord Carnwath agree) delivers the lead judgment. Lord Hughes concurs with the result but for different reasons. Lord Toulson (in the majority) reads s 94(5) of the Act as referring to countries where its citizens are free from any serious risk of systematic persecution either by the state or by non state agents which the state is unable or unwilling to control. The phrase in general differentiates persecution which occurs in the ordinary course of things from isolated incidents of persecution. It does not require the persecution to affect any particular percentage of the population [21]. Rather, the persecution must be a general feature of life in the country and apply to a recognisable section of the community. This reading is influenced by the fact that persecution within the Refugee Convention will often be directed towards minorities and that the majority of asylum and human rights claimants belong to minorities. Requiring the group persecuted to exceed a percentage threshold is open to several objections: there is no way of determining that threshold; it is hard to see why it should make a difference whether a group just exceeds or just falls below the threshold; and, there would be no way of obtaining reliable information about the size of many minority groups [22]. The leading authorities do not contend otherwise [13] [19]. Lord Toulson is not persuaded that it makes little or no difference to individuals whether their state is on the s 94(4) list. The purpose of designation is that applicants from those countries will normally be detained and fast tracked, as borne out by the facts of this case. Designation of a state changes the complexion of the analysis of the claim [23]. Lord Hughes (in the minority) agrees that it would be impossible to lay down a defined percentage of the population which needs to be at risk before there exists in general a serious risk of persecution. However, the Secretary of State should not be prevented from designating a State under s 94(4) of the Act simply because some form of grouping or a recognisable section of the community may suffer persecution when in general that State is free from persecution [30]. To bar designation where the risk is systemic, in the sense that it applies to members of an identifiable group, risks redefining the phrase in general and removes the intended flexibility on the part of the Secretary of State to make these complex decisions [34]. Nonetheless, in this case the risk to all who are homosexual, lesbian, bisexual or trans sexual can only properly be described as a general risk in Jamaica so that the appeal should be dismissed [36]. |
This appeal concerns PH, a young man with physical and learning disabilities, who was born in Wiltshire in 1986. He lacks capacity to decide for himself where he lives. Since 1991, PH has been living with foster parents in South Gloucestershire. In 1991 PHs parents moved away from Wiltshire to Cornwall. PH occasionally visited them there, including at the end of 2004 just before his eighteenth birthday. Since he turned eighteen, PH has lived in two care homes in Somerset. The cost of PHs care is currently estimated to be 80,000 per year for the rest of his life. There is no dispute that he is entitled to support. The issue is which local authority is responsible for providing PHs support South Gloucestershire, Cornwall, or Wiltshire? This depends, under sections 24(1) and 24(5) of the National Assistance Act 1948, on where PH was ordinarily resident immediately before he attained majority. Wiltshire Council arranged PHs foster placement under the Children Act 1989. Section 105(6)(c) provides that, in determining a childs ordinary residence for the purposes of the 1989 Act, there shall be disregarded any period in which the child lives in any place while he is being provided with accommodation by or on behalf of the local authority. At the time PH turned 18, the National Assistance Act 1948 section 21 obliged local authorities to arrange accommodation for people over eighteen with disabilities who need care and attention not otherwise available to them (the application of the 1948 Act has since been restricted to Wales). By section 24(5), a person provided with accommodation under the 1948 Act is deemed to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before that accommodation was provided for him. Section 105(6)(c) and section 24(5) have been referred to as deeming or disregard provisions. In August 2011, the three local authorities jointly referred the question of PHs ordinary residence to the appellant Secretary of State for determination, under section 32(3) of the 1948 Act. The Secretary of State decided that Cornwall Council was responsible. He followed his own guidance on determining ordinary residence, which draw on two principal authorities: R v Barnet LBC, ex p Shah [1983] AC 309, and R v Waltham Forest, Ex p Vale (unreported, 11 February 1985). In Shah, the House of Lords held that ordinary residence connotes an abode voluntarily adopted for settled purposes. In Vale the High Court held that an adult woman whose disabilities meant she was incapable of choosing where to live had her ordinary residence with her parents, because that was her base. The Secretary of State applied this approach, which was challenged in this appeal. Cornwall Council judicially reviewed the Secretary of States decision. The High Court dismissed its challenge. The Court of Appeal disagreed, holding that PHs place of ordinary residence as at his eighteenth birthday was South Gloucestershire, and further that the deeming provisions did not apply to PH since each applied only for the purposes of their own Act. The Supreme Court allows the appeals by a majority of 4 1, and determines PHs ordinary residence at the relevant time to be Wiltshire. Lord Carnwath gives a judgment with which Lady Hale, Lord Hughes and Lord Toulson agree. Lord Wilson gives a dissenting judgment. Lord Carnwath considers that the Secretary of States reasons for selecting Cornwall, which started not from assessment of the duration and quality of PHs actual residence but from an attempt to ascertain his base by reference to his family relationships, cannot be supported. There is no suggestion that PHs brief periods of staying with his parents at holiday times could amount to ordinary residence. [49] Lord Carnwath further reasons that though attribution of responsibility to South Gloucestershire may fit the language of the statute, it runs directly counter to the statutes policy. The only connection with that county was PHs historic placement under a statute, the 1989 Act, which specifically excluded the placement from consideration as ordinary residence for the purposes of the 1989 Act. The policy in both the 1989 and 1948 Acts is that ordinary residence of a person provided with accommodation should not be affected, for the purposes of an authoritys responsibilities, by the location of that persons placement. The purpose of the deeming provisions in both Acts is that an authority should not be able to export its responsibility for providing accommodation by exporting the person who is in need of it. It would be undesirable if, despite the similarity and purpose of these provisions, there is a hiatus in the legislation. It could also have adverse consequences on local authorities willingness to receive children who need specialist care from another local authority. [52 55] Lord Carnwath notes that in construing section 24 of the 1948 Act, the statutory context is critical. The relevant provisions in each Act have the same function, namely allocating fiscal and administrative responsibility between local authorities. [57] PH was at the relevant time living somewhere he had been placed by a local authority under the 1989 Act. It would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are found in the 1989 Act. One of those characteristics is that the foster placement did not affect his ordinary residence under the 1989 Acts statutory scheme. [58 59] It follows that PHs placement in South Gloucestershire by Wiltshire is not to be regarded as changing his ordinary residence. Until he turned eighteen, for fiscal and administrative purposes his ordinary residence continued to be in Wiltshire, regardless of where they determined that he should live. [60] Therefore the appeal is allowed and in the declaration of the Court of Appeal references to South Gloucestershire are substituted for references to Wiltshire. [61] Lord Wilson, dissenting, reasons that at the relevant date PH and his family had all moved away from Wiltshire. [62] South Gloucestershire is the result that the law clearly compels on the established meaning of ordinary residence, though public policy militates against it. [65 66, 68] Though he did not adopt it voluntarily, PH was happy and settled there. [74] Parliament has not chosen to widen the provisions in the 1948 Act so as to disregard an adults previous placement as a minor under the 1989 Act. The majoritys analysis that the legal characteristics of a minors residence under the 1989 Act make it irrelevant to determining ordinary residence under section 24 of the 1948 Act makes the statutory disregards in section 105(6) of the 1989 Act and section 24(5) of the 1948 Act redundant. [70 71] |
This appeal concerns, first, the meaning of the obligation imposed on the United Kingdom by the Habitats Directive, a European legislative instrument, to prohibit deliberate disturbance of certain species of bats. It concerns, secondly, the scope of the obligation in domestic legislation on planning authorities to have regard to the requirements of the Habitats Directive. Hampshire County Council, the Respondent in the appeal, granted planning permission on 29 July 2009 for a proposed three mile stretch of roadway to provide a rapid bus service between Fareham and Gosport in South East Hampshire. The Appellant, Mrs Morge, lives close by and objects to the scheme. The scheme, its supporters argue, will create a new and efficient form of public transport to the benefit of many residents, workers and visitors to the area. Environmental objections have arisen, however, on grounds that the proposed path of the busway runs along the path of an old railway line, which has become an ecological corridor for various flora and fauna. The planning application was submitted on 31 March 2009 and objected to by Natural England, the Governments adviser on nature conservation, in part because of their concerns about the impact of the development on bats. The Council responded by submitting an Updated Bat Survey (UBS), largely as a result of which Natural England in a letter of 17 July 2009 withdrew their objections. At a meeting of the Councils Planning Committee on 29 July 2009 planning permission was granted by a majority of six to five with two abstentions. The UBS recorded that no bat roosts were found on the site. The removal of trees and vegetation, however, would result in a loss of good quality bat foraging habitats. This would have a moderate adverse impact at local level on foraging bats for nine years, the impact thereafter reducing to slight adverse / neutral. In addition the busway would sever a bat flight path, increasing their risk of collision with buses. Mrs Morge challenged the permission on environmental grounds, including its impact on several species of European protected bats. The challenge failed before the High Court and Court of Appeal, but the Supreme Court granted the Appellant limited permission to appeal on two issues of general importance. The first is the level of disturbance required to engage the prohibition in article 12(1)(b) of the Habitats Directive on deliberate disturbance of the bat species in question. The second is the scope of the obligation in regulation 3(4) of Conservation (Natural Habitats etc.) Regulations 1994 on local authorities to have regard to the requirements of the Habitats Directive in deciding whether to grant planning permission, and whether the Council in this case complied with the obligation. The Supreme Court by a majority of 4 1 dismisses the appeal. Lord Brown gives the lead judgment for the majority, setting out the correct approaches to article 12(1)(b) of the Habitats Directive and regulation 3(4) of the 1994 Regulations, and finding that the Council complied with the obligation in regulation 3(4). Lord Kerr agrees with majority on the article 12(1)(b) issue but dissents on the regulation 3(4) issue. On the first issue, the Court held that certain broad considerations must govern the correct approach to article 12(1)(b) of the Habitats Directive. First, it is an article affording protection specifically to species and not to habitats. Secondly, the prohibition relates to the protection of species and not specimens of these species as in other articles. Thirdly, an assessment is needed of the nature and extent of the negative impact of the activity upon the species and a judgment as to whether that is sufficient to constitute disturbance of the species. Fourthly, it is implicit in the article that activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species to constitute disturbance: [19]. The European Commissions guidance document is of assistance. It provides illustrations at either end of the spectrum within which the question arises as to whether any given activity constitutes disturbance, and explains that every case has to be judged on its own merits. Two further considerations are also of relevance. First, account should be given to the rarity and conservation status of the species in question and the impact of the disturbance on the local population of the species. Secondly, disturbance includes in particular that which is likely to impair an animals ability to survive, breed, rear its young, hibernate or migrate, and that which is likely to affect the local distribution or abundance of the species: [20] [23]. On the second issue, the majority held that the correct approach to regulation 3(4) is that planning permission should ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both be likely to offend article 12(1) and be unlikely to be licensed pursuant to the powers to derogate from the requirements of article 12(1). Where Natural England express themselves satisfied that a proposed development will be compliant with article 12(1), the planning authority are entitled to presume that that is so. In the present case the Planning Committee had sufficient regard to the requirements of the Directive so as to satisfy regulation 3(4): the Committee knew that Natural Englands objection had been withdrawn and that necessary measures had been planned to compensate for the loss of foraging: [30]. Lord Kerr, dissenting on this second issue, observed that Natural England had expressed no explicit opinion on the question of whether there would be violation of article 12(1). Even if it could be presumed that Natural Englands view was of no violation, that did not affect the clear indication in the letter of 17 July 2009 that the matter was still one which required the Committees attention. If Natural England had unambiguously expressed a view of no violation and the Committee had been informed of this, it may well have been unnecessary for the Committee to go behind that view. But absent such a statement, they were bound to make the judgment for themselves, something which they did not do. Lord Kerr would have quashed the planning permission on this basis: [75] [84]. |
The principal issue on this appeal concerns the meaning of the word makes in section 60(1)(a) of the Patents Act 1977 (the 1977 Act), which provides that a person infringes a patent for a particular product if he makes the product without the consent of the patentee. This issue arises in respect of European Patent (UK) 0 734 967 (the Patent), of which Protechna S.A. (Protechna) is the proprietor. Claim 1 of the Patent (the Claim) extends to certain aspects of a complete intermediate bulk container (IBC). An IBC is a large container used by suppliers of liquids (fillers), for the transport of a wide range of liquids to a so called end user. IBCs of a two part construction consist of a metal cage into which a large plastic container (or bottle) is fitted. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. The inventiveness of the Patent lies in the idea of flexible weld joints to the cage, to increase its strength and durability, and in the idea of introducing a dimple on either side of the weld and a central raised portion. The description of the Patent acknowledges that the bottle is exchangeable (i.e. replaceable). The cage has a life expectancy on average five or six times longer than a bottle, which is why so called reconditioners engage in re bottling or cross bottling used IBCs. In either case, the old bottle is removed, any damage to the cage is repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer, whereas cross bottling involves replacing the bottle with a bottle from a different source. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market, in competition with the products of original manufacturers, and of other reconditioners. Schtz (U.K.) Limited (Schtz) is the exclusive licensee of Protechna, and the leading manufacturer of rigid composite IBCs, in the United Kingdom. Werit UK Limited (Werit) sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs. Schtz objected to Deltas cross bottling activities, and issued proceedings against Werit, seeking relief on the ground that Werit infringed the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. Two issues arising from those proceedings are relevant to the present appeal. The first issue is whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a) of the 1977 Act. The second issue, which arises only if it is found that Delta infringes the Patent, concerns costs sanctions in such proceedings under section 68 of the 1977 Act (the section 68 issue). At first instance, Floyd J held that Deltas cross bottling activities do not amount to making the patented product, on the ground that the inventive concept of the Claim is wholly embodied in the Schtz cage. The Court of Appeal considered that it was inappropriate to determine the issue by reference to the inventive concept, and held that Deltas cross bottling activities do amount to making the patented product, on the basis that the Schtz IBC ceases to exist when the Schtz bottle is removed, and all that remains at that stage is merely an important component from which a new IBC could be made. The Supreme Court unanimously allows Werits appeal and holds that Delta did not make the patented article contrary to section 60(1)(a) of the 1977 Act. Lord Neuberger gives the judgment of the Court. This decision renders Werits appeal on the section 68 issue academic, but because the issues that appeal raises were fully argued, Lord Neuberger provides some guidance on how the costs sanctions under section 68 of the 1977 Act work [80] [107]. The central issue is whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. The word makes does not have a precise meaning. It must be interpreted contextually, by reference to the facts of the particular case, and in a practical way, bearing in mind that the precise scope of a claim may be a matter almost of happenstance. It must also be given a meaning which, as a matter of ordinary language, it can reasonably bear. There is a need for clarity and certainty for patentees and others, and for those advising them. It should also be borne in mind that the word makes applies to patents for all sorts of product. Moreover, there is a need to protect the patentees monopoly while not stifling reasonable competition [26] [29]. Therefore, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article [26],[57],[58],[72],[78]. Observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution because of the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article [53]. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves the making of a new article, rather than constituting a repair of the original article. One must, however, avoid simply contrasting making and repairing, not least because these concepts may well overlap. That said, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article, because repair of an item frequently involves replacement of one or some of its constituents [48] [50]. It is both legitimate and helpful to consider the question whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article [61]. While undoubtedly an essential and physically large part of the patented article, four factors indicate that the bottle can fairly be said to be a relatively subsidiary part of the IBC, when that article is viewed as a whole [64]. (i) The bottle has a significantly lower life expectancy than the cage [65] [66]. (ii) The bottle does not include any aspect of the inventive concept of the Patent [67] [69]. (iii) The bottle is a free standing item of property [70]. (iv) The damaged free standing bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary [71]. The question whether the end user is paid for a used IBC could be of relevance [74], although there was no evidence which can fairly enable assessment of this factor [75], and it is very unlikely that any such evidence would have affected the outcome [76]. This case represents a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, reaching a conclusion on infringement. Given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, Delta does not make the patented article [78]. |
This appeal arises out of the grounding of the Ocean Victory (the vessel). By a demise charterparty the vessels owners, Ocean Victory Maritime Inc. (the owners) chartered the vessel to Ocean Line Holdings Ltd (the demise charterer) on the widely used Barecon 89 form, as amended [1]. It provided for the demise charterers to procure insurance for the vessel at their expense against marine, war and protection and indemnity risks for the joint interest of themselves and the owners [93]. The demise charterer time chartered the vessel to China National Chartering Co Ltd (Sinochart), who sub chartered the vessel to Daiichi Chuo Kisen Kaisha (Daiichi). The demise charter and both time charters contained the same undertaking to trade the vessel between safe ports [1 2]. In September 2006, Daiichi gave the vessel instructions to load at Saldanha Bay in South Africa and discharge at the port of Kashima in Japan [3]. The quay at Kashima was vulnerable to long waves which can result in a vessel being required to leave the port. The only route in and out of Kashima is by a narrow channel, the Kashima Fairway, which is vulnerable to northerly gales [3, 9]. There is no meteorological reason why these two events should occur at the same time [9]. However, on 24 October 2006, the vessel sought to leave the port due to long waves but, due to a severe northerly gale, was unable to safely navigate the fairway and was grounded, becoming a total loss [1, 4]. Gard Marine & Energy Ltd (Gard), one of the vessels hull insurers, took assignments of the rights of the owners and the demise charterer in respect of the grounding and total loss. It brought a claim against Sinochart (which Sinochart passed on to Daiichi) for damages for breach of the charterers undertaking to trade only between safe ports [5]. In the High Court, Teare J held that there had been a breach of the safe port undertaking. The combination of the two weather conditions was not an abnormal occurrence, even though the coincidence of the conditions was rare, because both conditions were physical characteristics of the port. The Court of Appeal allowed Daiichis appeal on this issue (issue 1). The Court of Appeal also held that, due to the joint insurance provisions, the owners were not entitled to claim against the demise charterparty in respect of insured losses (issue 2), reversing Teare Js finding on this issue. Gard appealed on both these issues [7]. In addition, the Supreme Court considered whether Daiichi would be entitled to limit its liability for loss of the ship pursuant to the 1976 Convention on Limitation of Liability for Maritime Claims (the Convention) enacted into English law by the Merchant Shipping Act 1995. This issue was not considered by the courts below as it was accepted that they were bound by the decision of the Court of Appeal in The CMA Djakarta [2004] 1 Lloyds Rep 460 which had held that such limitation was not possible (issue 3) [58 59]. The Supreme Court unanimously dismisses the appeal on the ground that there was no breach of the safe port undertaking. Lord Clarke gives the lead judgment, with which all the justices agree on issue 1 and on issue 3; if there had been a breach of the safe port undertaking Daiichi would not have been entitled to limit its liability under the Convention. In respect of issue 2, Lord Toulson and Lord Mance, in judgments with which Lord Hodge concurs, agree with the Court of Appeal, that the joint insurance would have precluded any claim by owners against the demise charterer, or therefore by the latter down the line. Lord Clarke and Lord Sumption take the opposite view. It was common ground that the test for breach of the safe port undertaking is whether the damage sustained by the vessel was caused by an abnormal occurrence [10], that the date for judging the breach of the safe port promise is the date of nomination of the port and the promise is a prediction about the safety of the port when the ship arrives in the future. [13, 24]. Abnormal occurrence should be given its ordinary meaning; something rare and unexpected that the notional charterer would not have in mind [16, 25, 27]. The test is not whether the events which caused the loss are reasonably foreseeable. The fact that the combination of long waves and northerly gales was theoretically foreseeable does not make it a normal characteristic of the port. Regard must be had to the reality of the situation in the context of all the evidence to ascertain whether the particular event was sufficiently likely to occur to have become an attribute of the port [14, 32, 37 40]. Teare J erred in failing to answer the unitary question of whether the simultaneous coincidence of the long waves and gales was an abnormal occurrence [34]. No vessel in the ports history had risked damage in the quay due to long waves at the same time the Kashima Fairway was unnavigable because of gale force winds. There was also evidence regarding the exceptional nature of the rapid development, duration and severity of the storm. On the basis of this evidence the conditions in question were an abnormal occurrence and there was therefore no breach by Daiichi of the safe port undertaking [41 45]. Assuming there had been a breach of the safe port warranty, Gard claims to be able to recover the insured value of the vessel from the time charterers as the demise charterers assignee on the basis that the demise charterer is liable to the owners for breach of its safe port undertaking, and is therefore entitled to recover the same sum from the time charterer [93, 138]. Lord Toulson, Lord Mance and Lord Hodge conclude that the provisions of clause 12 of the demise charter, which provide for joint insurance and a distribution of insurance proceeds, preclude such a claim. It is well established that co insureds cannot claim against each other in respect of an insured loss. Clause 12 provides a comprehensive scheme for an insurance funded result in the event of loss of the vessel by marine risks. The safe port undertaking does not alter this scheme. [139 146, 114 122]. Lord Sumption agrees that co insureds cannot claim against each other in respect of an insured loss. Whether this is because liability to pay damages is excluded by the terms of the contract, or because as between the co insureds the insurers payment makes good any loss and satisfies any liability to pay damages will depend on the terms of the contract [99 100]. In this case clause 12 of the demise charter envisages the latter [101 105]. Lord Clarke agrees with Lord Sumption on this issue [48 57]. Had there been a breach of the safe port warranty, Daiichi would not have been entitled to limit its liability under the Convention. Article 2(1)(a) of the Convention allows owners or charterers to limit liability for loss or damage to property occurring on board the ship or in direct connexion with the operation of the ship [61]. The court agrees with the Court of Appeal in The CMA Djakarta that giving the words their ordinary meaning, this category of claim does not include loss or damage to the ship itself [79 81]. This interpretation is supported by Articles 9 to 11 of the Convention [82 84] and there is nothing in the travaux prparatoires which supports another conclusion [86]. |
This appeal is concerned with the entitlement of a taxpayer to deduct input value added tax (VAT) and claim repayment of surplus input VAT. It concerns the interpretation of articles 167 and 168(1) of Council Directive (EC) 2006/112/EC of 28 November 2016 on the common system of value added tax (the Principal VAT Directive) and the case law of the Court of Justice of the European Union (CJEU) relating to those articles. In short, the question is whether a taxpayer can deduct as input tax the VAT which it has incurred in purchasing entitlements to an EU farm subsidy, the Single Farm Payment (SFP). The taxpayer has used those entitlements to annual subsidies over several years and intends to use money resulting from the receipt of those subsidies to fund its current and future business activities, which currently involve only taxable supplies. Frank A Smart & Son Ltd (FASL) is a Scottish company which carries on a farming business in Aberdeenshire. FASL is wholly owned by Mr Frank Smart, who is its sole director. Mr Smart and his wife are the partners in a partnership which owns Tolmauds Farm, which it leases to FASL. FASL received SFPs from the Scottish Government. SFPs were agricultural subsidies which between 2005 and 2014 were paid to farmers who met certain requirements. When the scheme was initiated, farmers in the United Kingdom were allocated initial units of entitlement to single farm payments (SFPEs) for no consideration. The SFPEs were tradeable and a market in them developed. FASL took advantage of the market in SFPE units to accumulate a fund for the development of its business. It spent about 7.7m between 2007 and 2012 on purchasing 34,377 SFPE units in addition to its initial allocation of 194.98 units for Tolmauds Farm. In this period FASL paid VAT on the SFPE units which it purchased and it has sought to deduct or claim repayment of that VAT as input tax. HMRC refused to allow FASL to deduct VAT of 1,054,852.28 in its returns between December 2008 and June 2012. FASL appealed to the First tier Tribunal (FTT). The FTT allowed the appeal. The FTT found that, when it purchased the SFPE units, FASL intended to apply the income which it received from the SFPs to pay off its overdraft and to develop its business operations. FASL was also contemplating three principal developments of its business, including establishing a windfarm, constructing further farm buildings and purchasing neighbouring farms. Based on those findings, the FTT concluded that the funding opportunity afforded by the purchase of the SFPE units did not form a separate business activity of FASL but was a wholly integrated feature of the farming enterprise. HMRC appealed to the Upper Tribunal (Lord Tyre), which refused the appeal. HMRC appealed to the Inner House of the Court of Session. An Extra Division of the Inner House (Lord Menzies, Brodie and Drummond Young) dismissed the appeal. HMRC appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the sole judgment with which the other Justices agree. The Supreme Court considered the Principal VAT Directive [11 16], the Value Added Tax Act 1994 [17 19] and the relevant CJEU case law [25 64]. It derived the following propositions [65]: (1) As VAT is a tax on the value added by the taxable person, the VAT system relieves the taxable person of the burden of VAT payable or paid in the course of that persons economic activity and thus avoids double taxation. (2) There must be a direct and immediate link between the goods and services which the taxable person has acquired (in other words the particular input transaction) and the taxable supplies which that person makes (in other words its particular output transaction). This link gives rise to the right to deduct. The needed link exists if the acquired goods and services are part of the cost components of that persons taxable transactions which utilise those goods and services. (3) Alternatively, there must be a direct and immediate link between those acquired goods and services and the whole of the taxable persons economic activity because their cost forms part of that businesss overheads and thus a component part of the price of its products. (4) Where the taxable person acquires professional services for an initial fund raising transaction which is outside the scope of VAT, that use of the services does not prevent it from deducting the VAT payable on those services as input tax and retaining that deduction if its purpose in fund raising, objectively ascertained, was to fund its economic activity and it later uses the funds raised to develop its business of providing taxable supplies. The same may apply if an analogous transaction involving the sale of shares is classified as an exempt transaction. (5) Where the cost of the acquired services, including services relating to fund raising, are a cost component of downstream activities of the taxable person which are either exempt transactions or transactions outside the scope of VAT, the VAT paid on such services is not deductible as input tax. Where the taxable person carries on taxable transactions, exempt transactions and transactions outside the scope of VAT, the VAT paid on the services it has acquired has to be apportioned. (6) The right to deduct VAT as input tax arises immediately when the deductible tax becomes chargeable. As a result, there may be a time lapse between the deduction of the input tax and the use of the acquired goods or services in an output transaction. Further, if the taxable person acquired the goods and services for its economic activity but, as a result of circumstances beyond its control, it is unable to use them in the context of taxable transactions, the taxable person retains its entitlement to deduct. (7) The purpose of the taxable person in carrying out the fund raising is a question of fact which the court determines by having regard to objective evidence. The existence of a link between the fund raising transaction and the persons taxable activity is to be assessed in the light of the objective content of the transaction. The ultimate question is whether the taxable person is acting as such for the purposes of an economic activity. This is a question of fact which must be assessed in the light of all the circumstances of the case, including the nature of the asset concerned and the period between its acquisition and its use for the purposes of the taxable persons economic activity. In light of the foregoing, the Court considers that FASL, when it incurred the costs of the SFPE units, was acting as a taxable person because it was acquiring assets in support of its current and planned economic activities, namely farming and the windfarm. On that basis, FASL was entitled to an immediate right of deduction of the VAT paid on the purchase of the SFPE units and is entitled to retain that deduction or repayment so long as it uses the SFPs which it received as cost components of its economic activities. Moreover, on the facts founds, FASL does not carry out and does not propose to carry out downstream non economic activities or exempt transactions. Therefore, no question of apportionment arises [68]. |
Until 2006, pension schemes could be approved by the Inland Revenue (now HMRC). Taxpayers who paid contributions into approved pension schemes received relief from income tax on their contributions, but were subject to certain restrictions on the application of the fund. In particular, with limited exceptions assets could only be withdrawn from an approved pension scheme on retirement (or death, if earlier), and then had to be used to purchase an annuity. A practice arose under which small pension schemes would gain approval and the consequent tax advantages, then be managed in such a way as to lose their approval, so that the scheme funds could be withdrawn free of the restrictions. Parliament enacted anti avoidance legislation to prevent this practice. The Income and Corporation Taxes Act 1988 (as amended) sets out three scenarios where a schemes approval may cease. Approval is withdrawn automatically where the scheme fails to comply with regulations, in which case its approval automatically ceases 36 months after the introduction of the regulations (s 591A(2), a transitional provision), and immediately after an unapproved and unauthorised alteration is made to the scheme (s 591B(2)). Where the Revenue considers that the facts cease to warrant the continuance of approval, the Revenue may also withdraw approval by notice from a date specified in the notice, which must not be earlier than the date when the facts first ceased to warrant the continuance of approval (s 591B(1)). Under s 591C of the Act, once approval ceases to have effect, the scheme is liable to a 40% tax charge on an amount equal to the value of the scheme assets immediately before the date of the cessation of approval of the scheme. The question arising in this appeal is when the charge is incurred where approval is withdrawn following the giving of notice by the Revenue under s 591B(1). In that case, does approval cease to have effect at the date of the notice itself, or at the date from which the facts of the scheme cease to warrant the continuance of approval, as specified in the notice? The Revenue notified the administrator of the Appellant pension scheme on 19 April 2000 that approval was withdrawn under s 591B(1) with effect from 5 November 1996. The Revenue says that the 40% tax charge fell to be assessed in the 2000/1 tax year when the withdrawal was notified. The taxpayer says that it fell to be assessed in the 1996/7 tax year when the scheme ceased to be eligible and withdrawal of approval took effect under the Revenues notice (and therefore that the Revenue is out of time to impose the assessment). The First tier tribunal, Upper Tribunal and Court of Appeal all considered that the tax charge fell in the 2000/1 tax year. The Supreme Court allows the appeal by a 3:2 majority. Lord Sumption gives the leading judgment. Lord Neuberger agrees with Lord Sumption and sets out his own reasoning. Lord Reed agrees with both Lord Sumption and Lord Neuberger, and again sets out his own reasoning. Lord Hodge and Lord Carnwath give dissenting judgments. The charge is assessed on a notional profit or gain accruing immediately before the cessation of approval under s 591C(2). [9] The parties correctly agreed that the date of cessation of approval, immediately before which the fund is valued, is the date specified in the notice. The conditions for liability to the tax charge in s 591C(4) (6A) only make sense on the footing that the cessation of the approval of the scheme is the effective date of the withdrawal of the approval and not the date of the notice itself. [11, 29] This is also the outcome which makes most sense as a matter of language and of principle: it avoids double taxation, and ensures that the fund is valued while it is still intact. [48] The words cessation of approval in s 591C(2) mean the same thing as the words ceases to have effect in s 591C(1). The date of cessation of approval is obvious in the case of automatic withdrawal under ss 591A(2) and 591B(2): it is the date when the scheme ceases to qualify for approval. The functional equivalent in the case of withdrawal by notice under s 591B(1) is the date specified in the Revenues notice. This is the natural result of the language of these provisions, and also reflects their common purpose. [10, 50] This is confirmed by s 591D(7), which equates approval of the scheme being withdrawn with its ceasing to have effect and cessation of approval. [13, 50] Lord Neuberger notes that as a general proposition, the use of two different expressionsan approval [ceasing] to have effect in s 591C(1), and the cessation of the approval in s 591C(2)indicates an intention that the expressions should have different meanings; however, that presumption is rebutted by s 591D(7). [28, 30] The majoritys analysis is supported by s 61 of the Finance Act 1995 (introducing ss 591C and D into the 1988 Act), which presupposes that the date of the notice and the date of cessation of approval may be different. [12, 33] The result is therefore to expose the taxpayer to retrospective assessment and to the payment of interest from the earlier date. Per Lord Sumption [15 20], this is not anomalous, but occurs whenever tax is assessed in arrears, and amounts simply to a recognition of facts which already existed; per Lord Neuberger [32], retroactivity is inherent in any case where a notice is served under s 591B(1), and it is consistent that the valuation of the assets and the charge to tax should take place at the same date; and per Lord Reed [52] the charge is not truly retrospective, because it involves the recovery of tax forgone at an earlier date in reliance upon an expectation as to the future management of the scheme which was not fulfilled, and it is legitimate to charge interest from the earlier date because the taxpayer has had the use of the money for that period. The Revenues concern that it will often take more than the six year time limit to identify abusive schemes and issue the requisite notice is better addressed through the Revenues power to make regulations requiring the provision of information relating to any approved scheme; accepting the Revenues argument would effectively mean that there would be no time limit and that it could choose the chargeable period at its discretion. [21] Lord Hodge, dissenting, considers that s 591C(2) specifies the rate of the charge by reference to the value of the assets immediately before the cessation of approval of the scheme, but makes no statement as to the tax year in which that charge is to fall. [75] He emphasises that clear and positive words are needed to justify the imposition of retrospective tax and is not satisfied that s 591D(7) contains such words, particularly in light of the different conclusion reached by the lower courts. [72 73, 76] Rather, s 591D(7) shows that the words approval of a scheme ceasing to have effect in s 591C(1) look to the process by which withdrawal occurred, namely the giving of the notice. [77] The administrator of a pension scheme may, as in this case, be unaware of the circumstances which later cause the Revenue to withdraw approval of their scheme, and it would be unfair retroactive taxation to impose a liability in interest for unpaid tax on the scheme administrator in such circumstances. [79] The majoritys other points do not provide the needed clarity. [80 84] Lord Carnwath, agreeing with Lord Hodge, considers that the s 591C(1) charging provision unequivocally provides that an approval ceases to have effect when it is withdrawn by notice and so the charge arises in the year when the notice is served. [87] Section 591D(7) provides no principled basis for rewriting it. [88] |
This appeal concerns the compatibility of the use in a criminal trial of evidence obtained by a so called paedophile hunter (PH) group with the accused persons rights under article 8 of the European Convention on Human Rights (the ECHR). Article 8 provides that everyone has the right to respect for his or her private life and correspondence. PH groups impersonate children online to lure persons into inappropriate communications and provide the resulting material to the police. An adult member of a PH group, acting as a decoy, created a fake profile on a dating application using a photograph of a boy aged approximately 13 years old. The appellant entered into communication with the decoy, who stated that he was 13 years old. The appellant sent the decoy a sexual image and also arranged a meeting. At the meeting, the appellant was confronted by members of the PH group who remained with him until the police arrived. Copies of the appellants communications with the decoy were provided to the police. The respondent, as public prosecutor, charged the appellant with attempts to commit: (i) the offence of attempting to cause an older child (i.e. a child between 13 and 16 years old) to look at a sexual image, for the purposes of obtaining sexual gratification, contrary to section 33 of the Sexual Offences (Scotland) Act 2009 (the 2009 Act); (ii) the offence of attempting to communicate indecently with an older child, contrary to section 34 of the 2009 Act; and (iii) the offence of attempting to meet with a child for the purpose of engaging in unlawful sexual activity, contrary to section 1 of the Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005 (together, the charges). The appellant objected to the admissibility of the evidence sought to be relied upon by the respondent on the basis that it was obtained covertly without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 and without authorisation or reasonable suspicion of criminality in violation of his rights under article 8. These objections were dismissed and the appellant was convicted of the charges. The appellant appealed against his conviction to the High Court of Justiciary, which refused the appeal and granted the appellant permission to appeal to the Supreme Court on two compatibility issues, which arise in criminal proceedings over whether a public authority has acted in a way that is unlawful under section 6(1) of the Human Rights Act 1998. The Supreme Court unanimously dismisses the appeal. Lord Sales gives the judgment, with which all members of the Court agree. The appellant appeals on two issues: (1) whether, in respect of the type of communications used by the appellant and the PH group, article 8 rights may be interfered with by their use as evidence in a public prosecution of the appellant for a relevant offence; and (2) the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime [11]. On the first issue, the appellant submits that there was an interference with the appellants rights to respect for his private life and his correspondence under article 8(1), which required the respondent to show that such interference was justified under article 8(2) [26]. The court holds that there was no interference with those rights at any stage because: (i) the nature of the communications rendered them incapable of being worthy of respect under article 8; and (ii) the appellant had no reasonable expectation of privacy in relation to the communications [29] [31]. It is implicit in article 8(1) that the protected features of private life and correspondence must be capable of respect within the scheme of values the ECHR exists to protect and promote. States party to the ECHR have a special responsibility to protect children against sexual exploitation by adults [32] [33]. Here, in the absence of any state surveillance, and where the issue is the balance of the interests of a person engaging in such conduct and the children who are the recipients of the relevant communications, the reprehensible nature of the communications means they do not attract protection under article 8(1) [40]. The interests of children have priority over any interest a paedophile could have in being allowed to engage in criminal conduct. Further, the prohibition of the abuse of rights in article 17 of the ECHR supports the conclusion that the criminal conduct at issue in this case is not capable of respect for the purposes of article 8(1) [41] [43]. An important indication of whether the right to respect for private life and correspondence is engaged is whether the individual had a reasonable expectation of privacy in relation to those communications, which is an objective question [51] [55]. The appellants communications were sent directly to the decoy. There was no prior relationship between the appellant and recipient from which an expectation of privacy might be said to arise. Requests made by the appellant to the decoy to keep the communications private did not establish a relationship of confidentiality. Furthermore, the appellant believed he was communicating with a 13 year old child, who it was foreseeable might share any worrying communications with an adult [56]. The appellant may have enjoyed a reasonable expectation of privacy so far as the possibility of police surveillance or intrusion by the wider public are concerned, but not in relation to the recipient [58]. Once the evidence had been passed on to the police, the appellant had no reasonable expectation that either the police or the respondent should treat them as confidential. Again, under the scheme of the ECHR, the effective prosecution of serious crimes committed in relation to children is part of the regime of deterrence a state must have in place [59]. On the second issue, the state had no supervening positive obligation to protect the appellants interests that would prevent the respondent making use of the evidence to investigate or prosecute the crime. On the contrary, the relevant positive obligation on the respondent was to ensure that the criminal law could be applied effectively to deter sexual offences against children. Article 8 has the effect that the respondent should be entitled to, and might indeed be obliged to, make use of the evidence in bringing a prosecution against him [64]. |
These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. In order to protect employees from the adverse consequences of an under funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime. This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration. One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members. The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit. The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme. That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation). Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless. Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c). The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree. Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree. The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules). Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68] [71], they fall within rule 13.12(1)(b) [83]. It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt. The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59]. The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56]. These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87] [94]. There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72]. That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74]. At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77]. In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration. Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97]. However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98] [114]. The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115] [127]. Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129] [136]. |
The central issue on this appeal is how the governing law of an arbitration agreement is to be determined when the law applicable to the contract containing it differs from the law of the seat of the arbitration, the place chosen for the arbitration in the arbitration agreement. On 1 February 2016, a power plant in Russia was severely damaged by fire. The appellant Russian company (Chubb Russia) had insured the owner of the power plant (the owner) against such damage. The owner had entered into a contract with another company (the head contractor), in relation to construction work to be carried out at the plant. In turn, the head contractor engaged the respondent (Enka), a Turkish engineering company, as a sub contractor in the construction project. The contract made between the head contractor and Enka included an agreement that disputes would be determined through arbitration proceedings in London. In May 2014, the head contractor transferred its rights and obligations under the contract to the owner. After the fire in February 2016, Chubb Russia paid an insurance claim by the owner and, by doing so, assumed any rights of the owner to claim compensation from third parties, including Enka, for damage caused be the fire. In May 2019, Chubb Russia brought a claim against Enka in Russia. In response, in September 2019 Enka brought an arbitration claim in the High Court in London arguing that, by proceeding in the Russian court, Chubb Russia was in breach of the arbitration agreement and seeking an anti suit injunction to restrain Chubb Russia from pursuing the Russian claim. At first instance, the High Court dismissed Enkas claim on the primary ground that the appropriate forum to determine to scope of the arbitration agreement was the Russian court. On appeal, the Court of Appeal overturned the judges decision. It held that, unless there has been an express choice of the law that is to govern the arbitration agreement, the general rule should be that the arbitration agreement is governed by the law of the seat, as a matter of implied choice; that there was no express choice of law in this case and that the arbitration agreement was therefore governed by English law; and that it was appropriate to grant an anti suit injunction to restrain Chubb Russia from pursuing the Russian claim. Chubb Russia appeals to the Supreme Court. By a majority the Supreme Court dismisses the appeal. The judgment is given by Lord Hamblen and Lord Leggatt with whom Lord Kerr agrees. Lord Burrows delivers a dissenting judgment, with which Lord Sales agrees. Lord Sales also gives his own judgment. Where an English court must decide which system of law governs an arbitration agreement, it should apply the English common law rules for resolving conflicts of laws rather that the provisions of the Rome I Regulation, as the latter excludes arbitration agreements from its scope [25] [28]. According to the common law rules, the law applicable to the arbitration agreement will be: (i) the law expressly or impliedly chosen by the parties; or (ii) in the absence of such choice, the system of law most closely connected to the arbitration agreement [27]. In determining whether the parties have made a choice of law, the court should construe the arbitration agreement and the contract containing it by applying rules of contractual interpretation of English law as the law of the forum [29] [34]. Where the parties have not specified the law applicable to the arbitration agreement, but they have chosen the law to govern the contract containing the arbitration agreement, this choice will generally apply to the arbitration agreement [43] [52]. This general rule encourages legal certainty, consistency and coherence while avoiding complexity and artificiality [53]. The Court of Appeal was wrong to find that there is a strong presumption that the parties have, by implication, chosen the law of the seat of the arbitration to govern the arbitration agreement [59] [64]. Any overlap between the law of the seat and that of the arbitration does not justify such a presumption [64] [94]. While a choice of seat can lead to such an inference in some cases, the content of the Arbitration Act 1996, particularly section 4(5), does not support such a general inference [73] [82]. Where there is no express choice of law to govern the contract, a choice of the seat of the arbitration does not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of the seat [110] [117]. Where the parties have made no choice of law to govern the arbitration agreement, either specifically or by choosing the law which is to govern the contract as a whole, the court must determine the law with which the arbitration agreement is most closely connected. In general, the arbitration agreement will be most closely connected with the law of the seat of arbitration. [118] [119]. This default rule is supported by the following considerations: (i) the seat is where the arbitration is to be performed (legally, if not physically) [121] [124]; (ii) this approach maintains consistency with international law and legislative policy [125] [141]; (iii) this rule is likely to uphold the reasonable expectations of contracting parties who specify a location for the arbitration without choosing the law to govern the contract [142] [143]; and (iv) this approach provides legal certainty, allowing parties to predict easily which law the court will apply in the absence of choice [144]. The majority holds that the contract in this case contains no choice of the law that is intended to govern the contract or the arbitration agreement within it. In these circumstances the validity and scope of the arbitration agreement is governed by the law of the chosen seat of arbitration, as the law with which the dispute resolution clause is most closely connected [171]. The seat of the arbitration is London. Therefore, the majority upholds the Court of Appeals conclusion that English law governs the arbitration agreement, albeit for different reasons [171]. Chubb Russia does not dispute that, if the arbitration agreement is governed by English law, it was legitimate for the Court of Appeal to grant an anti suit injunction in this case. [173]. The Supreme Court, however, affirms the Court of Appeals decision that, in principle, it makes no difference whether the arbitration agreement is governed by English or foreign law, as the inquiry in both cases remains the same: whether there been a breach of the agreement and, if so, whether it is just and convenient to grant an injunction to restrain that breach [178] [182]. While there may be circumstances in which it would be appropriate to await a decision of a foreign court before granting an injunction, deference to foreign courts should generally give way to upholding the importance of the parties bargain [183]. Lord Burrows and Lord Sales agree with the majority that, if the parties have expressly or impliedly chosen the law of the contract, this choice applies to the arbitration agreement [266]. They dissent on what the default position should be in the absence of such choice. They consider that it should be that the law with which the main contract is most closely connected governs the arbitration agreement, as this is the law with which in their view the arbitration agreement is also most closely connected [257]. They also dissent on whether the parties have in this case chosen the law that is to govern the contract. In their view, the parties impliedly chose Russian law to govern the construction contract and also, therefore, the arbitration agreement [228]. They agree with the majority that whether it is appropriate to grant an anti suit injunction does not depend on what law governs the arbitration agreement but only on whether pursuing the foreign proceedings is a breach of that agreement. As they conclude that Russian law governs the arbitration agreement, they would remit the question of whether there has been a breach of the arbitration agreement so as to justify the grant of an anti suit injunction to the Commercial Court. |
Ms Moreno is a UK resident. In May 2011, whilst on holiday in Greece, she was hit by a car. The car was registered in Greece and driven by an uninsured driver. It is not disputed that the driver was responsible for the accident. Ms Moreno suffered very serious injuries. Ms Moreno has claimed damages from the UK Motor Insurers Bureau (UKMIB), pursuant to a series of Council Directives (collectively, the Directives), culminating in a Sixth Directive 2009/103/EC (the Sixth Directive). The Directives are transposed into English law by The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003 No 37) (the 2003 Regulations). The purpose of the arrangements introduced by the Directives and the 2003 Regulations is to ensure that compensation is available for victims of motor accidents occurring anywhere in the European Union and to facilitate their recovery of such compensation. They establish a scheme whereby, amongst other things, victims of a motor accident which occurs in one member state can in certain circumstances claim compensation directly from a body in their own member state of residence. The UKMIB is the designated body in the United Kingdom against which such claims can be made. The operation of the relevant part of the Directives was conditional on the conclusion of a subsequent agreement between compensation bodies and guarantee funds (the Agreement), which was reached in April 2002. The preliminary issue the subject of this appeal is whether the scope of Ms Morenos claim to damages is to be determined in accordance with English or Greek law. Her concern is that Greek law would yield a lesser measure of compensation than English law. At first instance, Gilbart J considered that he was bound by previous Court of Appeal authority (Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208) to hold that the damages are to be determined by English law. Gilbart J granted a leapfrog certificate under section 12 of the Administration of Justice Act 1969, which allows for cases to move directly from the High Court to the Supreme Court with its permission, which was granted in July 2015. The Supreme Court unanimously allows the appeal by the Motor Insurers Bureau. Lord Mance gives the lead judgment with which the other Justices agree. The 2003 Regulations should, so far as possible, be interpreted in a sense which is not in any way inconsistent with the Directives: Marleasing v La Comercial Internacional de Alimentacin (Case C 106/89) [26]. There is no suggestion in the 2003 Regulations or elsewhere, that the domestic legislator intended to do anything other than faithfully implement and give effect to the Directives [28]. Two questions are central to this appeal. The first is whether the Directives prescribe any particular approach to the scope or measure of recovery applicable in a claim against a compensation body under article 7 of the Fourth Directive (article 25(1) of the Sixth Directive). The second is if they do, whether the language of Regulation 13(2)(b) of the 2003 Regulations reflects this approach, or mandates some different approach, whatever the Directives may have required [29]. As to the first question, viewed as a whole, the Directives were and are a scheme of which the constant aim has been to improve the prospects and ease with which injured parties can recover the compensation to which they are entitled in respect of any loss or damage caused by vehicles [6 30]. The inference is that the victim of a motor accident is entitled to the same compensation, whether against the driver responsible, his or her insurer, or, that failing, against the motor insurance bureau of the State of the accident or indeed the compensation body established in the victims state of residence [31]. Clauses 7.2 and 8.2 of the Agreement provided that the compensation body in the victims country of residence was to apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred. The Agreement needs to be viewed as part of the wider scheme, which in turn needs to be construed as a consistent whole [33]. The Directives do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victims entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference which route is chosen to the measure of liability of the body or person ultimately responsible. Since the position as a matter of European Union law is clear, there is no need for a reference to the Court of Justice [35 39]. As to the second question, the 2003 Regulations were consistent with the scheme of the Directives [40 41]. The loss and damage recoverable from the UKMIB is said in Regulation 12(4)(b) to be that properly recoverable in consequence of that accident by the injured party from [the insured] person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident. The most obvious purpose of this is to determine which of the United Kingdoms three legal systems should apply, rather than prescribing the measure of recovery in such proceedings [42]. The decisions in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609 and Bloy v Motor Insurers Bureau [2013] EWCA Civ 1543, [2014] 1 Lloyds Rep IR 75 should be over ruled in relation to the meaning of regulation 13(2)(b) [43]. |
In 2007 the Respondent (PBL) purchased the former Chelsea Barracks in London from the Ministry of Defence (MoD) for 959m. In order make the purchase, PBL obtained finance from a Qatari Bank, Masraf al Rayan (MAR), which specialises in Islamic finance. Islamic finance seeks to comply with Sharia law, which forbids the payment of interest in connection with the lending of money. In this case, the Sharia compliant funding model used is known as Ijara finance. On 5 April 2007, PBL and the MoD entered into a contract to purchase the barracks. On 29 January 2008, PBL contracted to sub sell the freehold to MAR. Also on 29 January 2008, MAR agreed to lease the barracks back to PBL. Upon completion, on 31 January 2008, the following occurred: (a) MAR and PBL entered into put and call options respectively requiring or entitling PBL to repurchase the freehold in the barracks; (b) the MoD conveyed the freehold in the barracks to PBL; (c) PBL conveyed the freehold in the barracks to MAR, and (d) immediately after that, MAR leased the barracks back to PBL. On 22 February 2008, PBL lodged a tax return in relation to the contract between it and MoD and claimed that there was no liability to Stamp Duty Land Tax (SDLT) because of the sub sale relief provision in s45(3) of the Finance Act 2003 (FA 2003). A return lodged by MAR relating to the sale agreement between PBL and MAR claimed alternative property finance relief under s71A of FA 2003. Section 71A relief was also claimed in relation to the lease by MAR to PBL on 31 January 2008. Consequently, the parties to the scheme transactions claimed that nobody incurred a liability to SDLT. The Appellants (HMRC) challenged the return made by PBL and issued a closure notice which amended the amount of SDLT due from 0 to 38.36m (the sum which would have been due on the sale by the MoD to PBL if that were a chargeable transaction). PBL appealed to the First tier Tribunal (FTT). In the FTT, HMRC successfully applied to amend its case to increase the amount of SDLT due from 38.36m to 50m (based on the total consideration which MAR agreed to provide PBL). Upon appeal to the Upper Tribunal (UT), PBL changed its position and argued that MAR was not entitled to s71A relief because, on a proper understanding of the related provisions of the FA 2003, MoD was the vendor of the barracks in terms of s71A(2). However, the UT concluded that PBL was the vendor. The Court of Appeal (CoA) found, amongst other things, that the vendor was MoD, and not PBL, with the result that s71A(2) did not exempt MAR from charge. The CoA found that PBL could not be the vendor due to s45(3) which disregarded the contract between MoD and PBL for the purchase of the barracks. As a result of this disregard, PBL had no chargeable interest so as to be regarded as entering into the sub sale contract with MAR. The principal question in the appeal to the Supreme Court is whether PBL is due to pay SDLT of 50m arising out of its purchase from the MoD. The appeal is allowed. Lord Hodge gives the majority judgment with which Lady Hale, Lord Hughes and Lord Lloyd Jones agree. Lord Briggs gives a dissenting judgment [93 129]. The UT correctly concluded that PBL was the vendor under s71A(2) and therefore that MARs purchase of the barracks from PBL was exempt from SDLT [23]. Various reasons support this finding. For instance, there is nothing within s71A which suggests that the exemption in s71A(2) will not apply when the sale by the customer to the financial institution is a sub sale which takes place contemporaneously and in connection with the customers purchase of the major interest in land [24 28]. The disregard in the tailpiece of s45(3) has no bearing on the operation of s71A(2)[30]. In this case, but for s75A (a general and broadly drafted anti avoidance provision [44 45]), the combination of the sub sale relief under s45(2) and s45(3) and the exemption under s71A(2) relieved the sale by the MoD to PBL and exempted the sale by PBL to MAR from a charge to SDLT [34 35]. It is unsurprising that s75A was only introduced over one year after the combination of s45 and s71A could operate in this way. S75A was enacted by Parliament to close such lacunas [31 33]. In this case, the party referred to as V in s75A is the MoD [46]. Looking at s75 as a whole, and taking a purposive approach to interpretation, P as referred to in s75A is PBL. PBL did not obtain a chargeable interest on 31 January 2008 because the contract between it and the MoD fell to be disregarded under s45(3). PBL acquired its chargeable interest, a leasehold interest, following the sub sale to MAR and the lease back to PBL. These transactions were transactions involved in connection with the disposal by MoD of its chargeable interest (s75A(1)(b)) [46 49]. S75A(1)(c) requires that the sum of the amounts of SDLT payable in respect of the scheme transactions (which in this case is nil) is less than the amount that would be payable on a notional land transaction effecting the acquisition of Vs chargeable interest by P on its disposal by V. In this case, the relevant notional land transaction involves PBL acquiring MoDs interest in the barracks [56]. S75A(5) provides that the chargeable consideration on the notional transaction is the largest amount (or aggregate amount) given by any one person for the scheme transactions. HMRC correctly asserted that the relevant sum is 1.25bn (the purchase price which MAR contracted to pay to PBL). SDLT due thereon is 50m (although this is subject to PBLs right to make a claim under s80 of FA 2003) [57 64]. S75B does not assist PBL. This section operates by excluding incidental transactions from the calculation of the chargeable consideration on the notional transaction for the purposes of s75A(5). However, s75B(2) and s75B(6) support the conclusion that both the sub sale to MAR and the grant by MAR of the lease to PBL are included in the transactions which transfer the chargeable interest from V to P for the purposes of s75A(5)[68 72]. Therefore, the 1.25 billion consideration which MAR contracted to pay to PBL is the relevant consideration under s75A(5)(a)[73]. PBL also argued that s75A(5) and s75B read together indirectly discriminates against those of Islamic faith (who may be expected to adopt Sharia financing techniques) contrary to the European Convention on Human Rights [66; 74]. This matter can be determined on the simple bases (a) that any discriminatory effect is objectively justified and (b) that, in any event, PBL is not a victim [75 80]. Various procedural challenges by PBL are also rejected [81 86]. Finally, a different approach suggested in Emmet and Farrand on Title whereby the transfer of the Chelsea barracks to MAR in the Ijara transaction should be viewed in English law as a mortgage such that MAR should have been registered as the proprietor of a charge (which is exempt from SDLT) would be contrary to the legislative scheme in FA 2003 [87 91]. In Lord Briggs view, the transfer from PBL to MAR was not exempt under s71A(2) because PBL was not the vendor under the relevant land transaction within the combined meaning of sections 45(5A)(b) and 71A(2). The vendor was the MoD [101]. Lord Briggs considers that this analysis achieves rather than wholly frustrates the underlying purpose of the relevant provisions, namely to charge land transactions involving sub sales or Islamic finance to a single charge to SDLT, rather than there being no charge at all. The contrary result cannot be what Parliament intended [109], at a time when there was no recourse to s75A [129]. In response, Lord Hodge notes that Lord Briggs approach results in different interpretations of vendor under s71A(2) and s73(2). He finds HMRCs explanation of a patchwork of provisions and a lacuna (remedied by s75A) more persuasive [36 38]. |
The Appellant (the taxpayer) operates bingo clubs. Customers pay a fee, which entitles them to play in a number of bingo games (collectively, a session). There is no obligation to play every game in a session. Prizes are paid to those who win games. VAT is charged on the supply of goods or services. Council Directive (EC) 2006/112 of 28 November 2006 (the Principal VAT Directive), which currently still applies in the UK, establishes a common system of VAT for member states of the European Union. The main UK national legislation is the Value Added Tax Act 1994 (the VAT Act) and the Value Added Tax Regulations 1995 (the 1995 Regulations). VAT is normally charged on the full amount paid by the customer. However, exceptionally in the case of commercial gambling the taxable amount is the net sum retained by the organiser after deducting the winnings paid out. For bingo, the fees charged must therefore be divided into two components: the stake, which is the contribution each customer makes towards the cash prizes, and the participation fee, which is the total fee received minus the stake. At all relevant times VAT was payable on the participation fee and not the stake. The present dispute arises from a change in guidance given by HMRC about how participation fees should be calculated. Until 2007, the guidance stated that bingo promoters should calculate the participation fees separately for each game. In February 2007, HMRC issued Business Brief 07/07 (the business brief), which stated that participation fees should be calculated on a session by session basis. This is more favourable to the promoter than the game by game basis as it tends to produce a lower taxable amount. The business brief stated that Bingo promoters that have calculated the VAT due on participation and session charges on a game by game basis, and who now find that they have done so incorrectly, may make a claim to HMRC for a repayment of any resulting overdeclaration, subject to the conditions set out in Notice 700/45. Notice 700/45 gave general guidance and stated that a claim was subject to a time limit of three years. This time limit had a legislative basis in section 80 of the VAT Act. The taxpayer accounted for VAT on a game by game basis until 2007. After the business brief was issued, the taxpayer made a claim under section 80 of the VAT Act for repayment of sums overpaid as a result of having used this basis of calculation; because of the time limit in section 80, the taxpayer claimed and was repaid for the previous three years only. In 2011, the First tier Tribunal (Tax Chamber) heard an appeal by another bingo club operator, which argued that it was entitled to make an adjustment without any time limitation. The First tier Tribunal agreed: Carlton Clubs plc v Revenue and Customs Comrs [2011] UKFTT 542 (TC); [2011] SFTD 1209. In light of that case, the taxpayer in the current dispute sought to make an adjustment for the years 1996 HMRC declined to accept that. The taxpayer appealed. The question for the Supreme Court was whether the taxpayer was entitled to make such an adjustment. The Supreme Court unanimously dismisses the appeal. Lord Leggatt gives the sole judgment. The first obstacle facing the taxpayer was the time limit in section 80 of the VAT Act, which applied to recovery of money paid that was not VAT due to HMRC. To avoid the time limit, the taxpayer therefore had to argue that all the tax paid on a game by game basis in the years 1996 2004 was due to HMRC [24]. The taxpayer argued that both the session by session and game by game methods were legitimate methods of calculation. As such, when using the game by game method, it was paying tax that was due and therefore section 80 of the VAT Act, and its time limit, did not apply [27]. Lord Leggatt disagreed; there was only one correct method of calculating the taxable element which was the session by session method [30]. In the present case, it was an agreed fact that a customer purchased a right to participate in a session of bingo [38]. No reason was advanced for going behind the pricing policy adopted by the taxpayer [39]. It followed that if, as a result of using the game by game basis, the taxpayer had paid more VAT to HMRC between 1996 and 2007 than if it had used the session by session method, then the taxpayer had paid tax that was not due. This means that section 80 with its three year time limit applied, so that VAT paid before 2004 cannot be recovered [41]. This was sufficient to dispose of the appeal. However, Lord Leggatt went on to address the rest of the taxpayers argument. The taxpayer sought repayment by relying on article 90 of the Principal VAT Directive, which states In the case of cancellation, refusal or total or partial non payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the member states. The mechanism for adjustments under article 90 is found in regulation 38 of the 1995 Regulations, which applies where there is an increase or a decrease in consideration for a supply. There is no time limit for making such adjustments [45]. The taxpayer argued that where the method of calculation changes and produces a lower amount, there is a reduction in the price / decrease in consideration for a supply for which an adjustment can be made under regulation 38 [46]. Lord Leggatt rejected that argument [47]. Article 90 and regulation 38 apply only where there has been a change in the consideration actually received by the taxpayer, not where all that has changed is the method used to calculate the taxable amount [48]. It would subvert section 80 of the VAT Act if the taxable person could, by adopting a different method of calculation, adjust its liability for all past years. The taxpayer further argued that the business brief required or invited bingo promoters to change the calculation method and make retrospective adjustments accordingly [57]. This was also not accepted. HMRC does not generally have the power to issue binding guidance [59] and the business brief was merely HMRCs view of the law; if the taxpayer disagreed, the position would need to be resolved by a tribunal [60]. In any case, the business brief could only reasonably be read as inviting bingo promoters who found that they had incorrectly calculated VAT on a game by game basis to make a claim for repayment under section 80 [64]. It could not be read as inviting promoters to make adjustments under regulation 38 [65]. The business brief was therefore inconsistent with the taxpayers case [67]. |
In January 2010 Lady Brownlie and her husband, Sir Ian Brownlie QC, were on holiday in Egypt, staying at the Four Seasons Hotel Cairo at Nile Plaza. Her evidence is that she had telephoned the hotel from England and booked an excursion in a chauffeur driven car. During the excursion, the car crashed. The passengers, in addition to Sir Ian and Lady Brownlie, were his daughter Rebecca, and Rebeccas two children. Sir Ian and Rebecca were killed. The others were seriously injured. Four Seasons Holdings Inc (Holdings) is the holding company of the Four Seasons hotel group. It is incorporated in British Columbia, Canada. Lady Brownlie issued a claim against Holdings, seeking: (i) damages for her own personal injuries, (ii) damages under the Law Reform (Miscellaneous Provisions) Act 1934 as Sir Ians executrix, and (iii) damages for her bereavement and loss of dependency under the Fatal Accidents Act 1976. In order to serve her claim form on Holdings in Canada, Lady Brownlie required permission from the court for service outside England and Wales. Master Yoxall initially granted permission, but Master Cook subsequently set aside that order on the basis that the English court lacked jurisdiction. Lady Brownlie appealed to Mr Justice Tugendhat, who restored the original order of Master Yoxall. The Court of Appeal permitted service outside England and Wales in respect of Lady Brownlies contractual claim and her claim under the 1976 Act, but disallowed it in respect of her claim under the 1934 Act and her claim for damages for her own injuries. The Supreme Court unanimously allows the appeal. Lord Sumption gives the lead judgment, with which Lord Hughes agrees. Lady Hale gives a partially concurring judgment with which Lord Clarke and Lord Wilson agree. Lord Wilson also gives a partially concurring judgment, with which Lord Clarke agrees. Before permission can be given for service of a claim form outside the jurisdiction, it is necessary for the claimant to establish that: (i) the case falls within at least one of the jurisdictional gateways in paragraph 3.1 of Practice Direction 6B (6BPD) to the Civil Procedure Rules (CPR), (ii) his or her claim has a reasonable prospect of success, and (iii) England and Wales is the proper place in which to bring the claim. Lady Brownlies contractual claim relies on a contention that the contract was made within the jurisdiction (the gateway in paragraph 3.1(6)(a)), whereas her tortious claims rely on a contention that damage was sustained within the jurisdiction (the gateway in paragraph 3.1(9)(a)) [3]. In order to satisfy the Court of such jurisdictional facts, a claimant must show a good arguable case on the issue. This means: (i) that the claimant must supply plausible evidence for the application of the relevant jurisdictional gateway in paragraph 3.1; (ii) that if there is an issue of fact about it, or some other reason for doubting whether the gateway applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at this interim stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it [4 7]. The Supreme Court invited Holdings to provide further evidence, which clarified that at the material times the Cairo hotel had been owned by a company unrelated to Holdings and operated by Holdings Egyptian subsidiary. There is consequently no realistic prospect of Lady Brownlie establishing that she contracted with Holdings, nor of Holdings being held liable for the drivers negligence. It follows that her claim against Holdings lacks reasonable prospects of success [13 15]. It is therefore unnecessary to consider where the contract was made. Lord Sumption adds (obiter) that the law governing that question is artificial but that its application may be unavoidable under the current wording of paragraph 3.1(6)(a) [16]. Lady Hale adds (obiter) the Rules Committee could consider a broader formulation of paragraph 3.1(6)(a)[33]. In those circumstances the correct interpretation of the gateway in paragraph 3.1(9)(a) does not arise. Anything said on the subject is obiter [17, 32]. The claim under the Fatal Accidents Act 1976 has no prospect of success because the 1976 Act has no application to a tort which is not governed by English law. The drivers alleged negligence is governed by the law of Egypt [18, 32, 55]. The Court of Appeal was wrong to base its interpretation of paragraph 3.1(9) on the Rome II Regulation, which is concerned with applicable law rather than jurisdiction [21 , 48 50, 57]. Lord Sumption and Lord Hughes would have held that the other tortious claims did not fall within paragraph 3.1(9)(a) [17]. This is because there is a fundamental difference between the damage done to an interest which the law protects (in this case, bodily integrity) and subsequent expenditure which is merely evidence of its amount [22 25]. The draftsman of 6BPD could have provided that damage should extend to the financial or physical consequences of the damage, but nothing in the language suggests that he did so. Policy considerations strongly suggest that that was not intended. In particular, (i) the current rules were intended to assimilate the test to that which applies in Brussels regulation cases, which has always disregarded the secondary consequences of physical damage; and (ii) if the test is satisfied by the occurrence of any of the subsequent physical or financial consequences of the damage in England, the result will in practice be to confer jurisdiction by virtue of the claimants place of residence [26 30]. Lady Hale, Lord Wilson and Lord Clarke consider Lady Brownlies tort claims to fall within paragraph 3.1(9)(a) insofar as they seek damages for personal injury to herself and, as his executrix, to her late husband [56]. Lady Hale observes that, under the CPR and its predecessors, the Court has always retained a discretion to refuse permission to serve proceedings outside the jurisdiction [34 39]. There is a consistent line of first instance decisions permitting claims in tort to be brought in England and Wales if damage is suffered here a result of injuries inflicted abroad. The judges in those decisions carefully considered and correctly rejected the arguments to the contrary [40 47]. There is no reason to think that the authors of paragraph 3.1(9) were contemplating anything but the ordinary and natural meaning of the word damage. The various judges who have held that damage refers to actionable harm are supported by the approach of the New South Wales Court of Appeal towards a similar jurisdictional rule [51]. Furthermore, damage can be suffered by the same person in more than one place and the distinction between direct and indirect damage is not easy to draw in all cases [51 53]. Lord Wilson and Lord Clarke consider that the relevant jurisdictional rules have widened as required by EU law; but it does not follow that those rules, in a claim unconstrained by EU law, should be narrowed to the size of the gateway set by EU law [58 62]. Paragraph 3.1(9)(a) refers to damage rather than the damage [63]. A narrow interpretation of the word damage, requiring claimants to litigate elsewhere, could lead to injustice [64]. It is questionable whether claims in which only a tenuous amount of damage is suffered in England and Wales will satisfy the separate test of whether that is the proper place in which to bring the claim [57, 65]. The courts of Ontario and New South Wales have a long standing jurisdiction to entertain claims based only on the occurrence of secondary damages within those jurisdictions, which ought to allay fears that this interpretation would encourage abuse [66]. |
The issue in the appeal is whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 (the 2007 Act) is incompatible with the Convention right set out in article 8 of the European Convention on Human Rights 1950 (the Convention), with the consequence that it is outside the legislative competence of the Scottish Parliament as defined in the Scotland Act 1998 and is not law. The appellant is the mother of a child who is the subject of adoption proceedings. She is opposed to the proposed adoption and has refused to give her consent. The first respondents are the prospective adoptive parents. Section 31 of the 2007 Act is concerned with parental consent to adoption. Subsection (3) sets out the grounds on which the parents or guardians consent to the making of the adoption order may be dispensed with. In this case, one of the grounds relied on is that set out in section 31(3)(d). This provision applies only where neither section 31(4) nor section 31(5) apply: that is to say, where the court does not consider that the parent is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so, or where the parent is not someone who is subject to an order removing parental responsibilities and rights and is unlikely to have such responsibilities or rights restored in the future. An adoption order may be made in these circumstances where [] the welfare of the child otherwise requires the consent to be dispensed with. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope and Lord Carnwath add brief concurring judgments. The Supreme Court first considers the correct approach to interpretation where Convention rights apply. It notes that the special interpretive duty imposed by section 3 of the Human Rights Act 1998 arises only where the legislation, if read and given effect according to ordinary principles, would result in a breach of the Convention. If the ordinary meaning of the legislation is incompatible with the Convention, it is then necessary to consider whether the incompatibility can be cured by interpreting the legislation in the manner required by section 3. If the legislation cannot be construed in a manner which is compatible with the Convention, then it will not be within the competence of the Scottish Parliament [15 17]. In interpreting section 31 of the 2007 Act, the Court notes that it is premised on the need for parents to consent to the making of an adoption order. Section 31(2)(b) however confers a power, exercisable only by a court, to dispense with the consent of a parent on the grounds specified in section 31(3). Secondly, the Court observes that those grounds are specified in greater detail than in section 52 of the Adoption and Children Act 2002, on which section 31 of the 2007 Act was based [24 29]. Turning to the precise wording of section 31(3)(d), the word welfare has to be read in the context of section 14(3), which requires the court to have regard to the need to safeguard and promote the welfare of the child throughout the childs life as the paramount consideration. The Court also considers that the court must have regard to the specific matters listed in section 14(4), so far as is reasonably practicable. Furthermore, section 31(3)(d) empowers the court to dispense with the parents consent only if it is satisfied that the welfare of the child requires it. The word requires must mean, as a matter of ordinary English, that it is necessary [30 32]. That ordinary meaning is appropriate for several reasons. First, the court will not lightly authorise the making of an adoption order against the wishes of a parent. Secondly, the 2007 Act was intended to operate in the context of the Convention rights, and the duty of courts, under section 6 of the Human Rights Act, not to act in a way which is incompatible with those rights. It must therefore have been intended that section 31(3)(d) would be construed and given effect by the courts in a manner which complied with the Convention. Thirdly, the 2007 Act is also to be construed in accordance with the presumption that it is not intended to place the United Kingdom in breach of its international obligations. The relevant international obligations include those arising under the Convention [33 37]. The Court next considers whether, construed on the basis of ordinary principles of statutory interpretation, section 31(3)(d) of the 2007 Act is incompatible with article 8 of the Convention. Having examined the relevant case law, the Court concludes that if the provision is applied as it considers it should be, then decisions made under it are compatible. Such decisions have a legitimate aim, namely to protect the welfare of children. Moreover, they meet the requirements of necessity and proportionality [38 43]. The Court rejects the contention that an order made under section 31(3)(d) is not in accordance with the law, within the meaning of article 8(2), because the provision is so imprecisely expressed that it lacks legal certainty. Interpreted in the light of its statutory context, it is plain that requires imports a test of necessity. Although section 31(3)(d) leaves much to the judgment of the sheriff, that reflects the nature of the subject matter of the provision. It is impossible to spell out exhaustively the particular circumstances in which an order dispensing with parental consent may be necessary. The application of the provision is foreseeable, provided the court interprets the provision correctly and bases its decision upon a reasonable assessment of the facts [45 49]. The Court regrets the delay in these proceedings, and makes suggestions as to how such delays might be minimised in future. [51 64]. |
These appeals concern the role of siblings in the procedures by which childrens hearings in Scotland make compulsory supervision orders (CSOs) under the Childrens Hearings (Scotland) Act 2011 (the 2011 Act). A CSO is an order in respect of a child which may (among other things) direct where the child is to reside and regulate the childs contact with any person. The 2011 Act provides for certain persons to have (or to be deemed to have) relevant person status in relation to a child. This status confers a right to be notified of, and an obligation to attend, any childrens hearing in relation to the child. The status also confers ancillary rights, such as access to the papers, the right to make submissions, and the right to seek a review of any CSO. Under section 81(3) of the 2011 Act, a person is deemed to be a relevant person if that person has (or has recently had) significant involvement in the upbringing of the child. In most cases that would not include a sibling. ABC is a 16 year old. His younger brother, DEF, is subject to a CSO which regulates his contact with ABC. ABC is not a deemed relevant person in relation to DEF. ABC argues that the relevant person scheme is incompatible with his right to respect for his family life under article 8 of European Convention on Human Rights (ECHR) and is therefore outside the legislative competence of the Scottish Parliament. The Lord Ordinary dismissed ABCs petition for judicial review but held that the test for deemed relevant person status in section 81(3) of the 2011 Act was too narrow to be compatible with article 8 of the ECHR, unless it was read down to include a broader range of people having established family life with the child. The First Division of Inner House of the Court of Session dismissed ABCs appeal and reversed the finding that there was a need to read down section 81(3). XY is a 24 year old with three younger sisters who are all subject to CSOs. XY applied to be deemed a relevant person in relation to each of his siblings and was briefly granted this status. However, following a series of decisions by childrens hearings, sheriffs and the Sheriff Appeal Court, XY is no longer deemed to be a relevant person in relation to any of his siblings. The First Division of the Inner House of the Court of Session, applying its own decision in the ABC case, dismissed XYs appeal against these decisions. XY argues that the provisions of the 2011 Act governing the grant and removal of deemed relevant person status (sections 81(3) and 81A(3)) are not compatible with his rights to a fair hearing and to respect for his family life under articles 6 and 8 of the ECHR. He argues that these provisions are therefore not within the legislative competence of the Scottish Parliament, unless they can be read down to render them compatible. The Supreme Court unanimously dismisses the appeals. Lady Hale and Lord Hodge give the sole judgment with which the other Justices agree. The Supreme Court considers that article 8 of the ECHR provides the appropriate framework for analysis. The requirement of a fair hearing under article 6 does not add anything to that right in the present circumstances [27]. In each case, the relevant interest for the purposes of article 8 is the maintenance and development of the relationship between the sibling and the referred child [29]. In the context of a childrens hearing, respect is shown to that interest if, in the particular circumstances of the case, the sibling is enabled to have an involvement in the decision making process, seen as a whole, to a degree sufficient to protect that interest [30]. The required degree of involvement will vary based on the nature and extent of the siblings relationship with the referred child. The Supreme Court concludes that article 8 does not require public authorities to grant relevant person status to a sibling, who does not have, and has not recently had, a significant involvement in the upbringing of the child [51]. Whilst the guidance has not always been clear, there is a range of measures which can be used to ensure that the relevant public authorities comply with their duty to act compatibly with the article 8 rights of family members who are not relevant persons [41]. For instance, the Scottish Childrens Reporter Administration directs reporters, when arranging a hearing, to consider whether there is anyone other than a (deemed) relevant person who ought to be invited under the discretionary powers contained in section 78 of the 2011 Act [32]. Childrens hearings also have recourse to advice from the National Convener of Children's Hearings Scotland, who would advise against refusing to obtain the views of a sibling of sufficient age and maturity [33]. Further guidance is provided in Childrens Hearings Scotlands Practice and Procedure Manual, which directs childrens hearings to obtain information about a childs relationships with siblings and to give careful consideration to how these relationships can be maintained and protected [35]. Under the Children (Scotland) Act 1995 and the Looked After Children (Scotland) Regulations 2009, the responsible local authority must obtain details of the childs siblings and their contact with the child and prepare a childs plan with arrangements for contact between the child and others [36]. In addition, the Principal Reporter, who is responsible for investigating whether a CSO is necessary, may require the local authority to provide a report or further information about a child, including relevant information about the childs siblings [37]. The child or any relevant person may also make representations on behalf of the childs wider family, including siblings [39]. Taken together, these mechanisms allow childrens hearings to show respect for the family life of those who are not entitled to the status of relevant person [38], provided that hearings are conducted in a practical and sensible manner and in line with the guidance of the Principal Reporter and Childrens Hearings Scotland [41]. As such, the Supreme Court holds that the relevant provisions of the 2011 Act are within the competence of the Scottish Parliament and need not be read down [50, 51]. Those who have a significant involvement in the upbringing of a child are those who make decisions for the child. Relevant person status is granted to such persons because CSOs interfere with their rights to make such decisions [46]. A sibling, who has not taken on such responsibility and does not face such interference, should not be given relevant person status. It would not be appropriate for every sibling to be required to attend all the childrens hearings under pain of criminal sanction [47], or to have comprehensive access to the referred childs documents (which might include highly sensitive information about the child and other family members) [48], or to have the power to delay or disrupt referrals by withholding their agreement to the underlying grounds [47]. Nor would this be consistent with the statutory requirement for childrens hearings to minimise the number of people present at any given time [50]. |
The central issue in these appeals is whether at common law an employee can recover damages for loss arising from the unfair manner of his dismissal in breach of an express term of an employment contract. Each of Mr Edwardss and Mr Bothams employment contracts contained express terms governing the procedure for dismissal in cases of misconduct and each were summarily dismissed from their employment as, respectively, consultant orthopaedic surgeon and youth community worker [3], [15]. In Mr Edwards case, disciplinary proceedings were instituted against him in December 2005. He was alleged to have undertaken an inappropriate internal examination of a female patient and then denied that the examination had taken place [4]. In February 2006, a disciplinary hearing was held and the panel decided that he should be summarily dismissed for gross personal and professional misconduct [5]. By a claim issued in the High Court in August 2008, Mr Edwards claimed damages for breach of his employment contract and its wrongful termination. Among other procedural breaches, he alleged that the disciplinary panel had not been constituted in line with the applicable policy, which formed a term of his contract. His case was that, if the panel had included a clinician of the same discipline as him, his contract would not have been terminated. His preliminary schedule of loss alleged that he lost earnings (past and future) of over 3.8 million [9]. Mr Botham was suspended from work in December 2002 and was charged with gross misconduct for behaving inappropriately in relation to two teenage girls. Following disciplinary proceedings, in September 2003 he was summarily dismissed for gross misconduct. Because his misconduct was in relation to young people, he was placed on the list of persons deemed unsuitable to work with children under the Protection of Children Act 1999 (the POCA list) [14]. Mr Botham brought proceedings in respect of his dismissal in the employment tribunal. In May 2007, it held he had been unfairly dismissed and his summary dismissal was a breach of contract. In relation to the unfair dismissal, it found that the Ministry of Defence (MoD) had breached express terms of his contract set out in the Discipline Code found in the MoDs Personnel Manual [15]. The tribunal awarded him 7,000 loss of salary and benefits for his notice period, a basic award of 1,989 and a compensatory award of 53,500. His name was removed from the POCA list [16]. Mr Botham then issued proceedings in the High Court seeking damages for breach of the express terms of his contract. Relying on the findings of the tribunal, he alleged that the MoD, in conducting the disciplinary process, failed to comply with provisions of the Disciplinary Code, by reason of which he suffered a loss of reputation, was put on the POCA list and prevented from obtaining further employment in his chosen field. The Supreme Court by a majority allows the appeal. Employees may not recover damages for loss suffered as a result of a breach of a term in their employment contract as to the manner of their dismissal unless the loss can be said to precede and be independent of the dismissal. Compensation for the manner of dismissal is limited to what they may recover pursuant to the Employment Rights Act 1996 (the 1996 Act). Lord Dyson gives the leading judgment with which Lord Mance (adding further comments) and Lord Walker agree. Lord Phillips agrees that the appeals should be allowed, but for different reasons. Lady Hale and Lords Kerr and Wilson dissent. In Johnson v Unisys Ltd [2001] UKHL 13, the House of Lords held that loss arising from the unfair manner of dismissal is not recoverable as damages for breach of the implied term of trust and confidence in employment contracts: it falls within what has been called the Johnson exclusion area [1]. By the time of the report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (the Donovan report) it was settled law that an employee was not entitled to recover damages in respect of the manner of his dismissal. The Donovan report recommended that the law should be changed and that statute should establish machinery to safeguard against unfair dismissal [21]. Parliament gave effect to this recommendation in the Industrial Relations Act 1971. The relevant provisions are now contained in the 1996 Act. But Parliament placed significant limitations on the ability of an employee to complain of unfair dismissal, such as the three month time limit for bringing a claim, and on the remedies available: there is a cap on the level of the compensatory award (now 68,400). Therefore, Parliament decided to give a remedy which was less generous than that which the common law would give for breach of contract in the ordinary way [19] [23]. In each legislative modification to the unfair dismissal scheme, Parliament linked failure to comply with disciplinary procedures with the outcome of unfair dismissal proceedings; the provisions about disciplinary procedure were intended to operate within the scope of the law of unfair (not wrongful) dismissal [30] [37]. It follows that, if provisions about disciplinary procedures are incorporated as express terms of an employment contract, they are not ordinary contractual terms. Parliament intended such provisions to apply to employment contracts to protect employees from unfair dismissal. It has specified the consequences of a failure to comply in unfair dismissal proceedings. It could not have intended that they would also give rise to a common law claim for damages. Unless the parties express otherwise, they are taken not to intend that a failure to comply with contractual disciplinary procedures will give rise to a common law claim for damages [37] [39],[94]. This is regardless of whether the term is express or implied. A dismissal may be unfair for a variety of reasons and any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal, not that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament [40]. However, other remedies, such as injunction, which do not cut across the statutory scheme, are not excluded [44]. Whether individual cases fall within the Johnson exclusion area is a matter of fact and depends on whether the procedural breach forms part of the dismissal process: [51]. Mr Edwards dismissal flowed from the panels erroneous findings, which flowed from its improper constitution. Likewise, Mr Botham alleges that the loss of reputation was caused by the dismissal itself. Both cases therefore fall within the Johnson exclusion area [55] [59], [99]. |
On 24 October 2007 and again on both 3 and 13 April 2008 the Respondent, Mr Varma, was stopped at Gatwick Airport and found to be in possession of a quantity of tobacco which he had brought into the United Kingdom without having made payment of the relevant import duties. On 27 November Mr Varma was convicted in the Crown Court of being knowingly concerned in fraudulently evading duty chargeable on goods, contrary to section 170(2)(a) of the Customs and Excise Management Act 1979. Following this, on 15 January 2009 the judge made Mr Varma subject to a conditional discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act), the condition being that he did not commit any further offence for a two year period from the date of the order. Confiscation proceedings under Part 2 of the Proceeds of Crime Act 2002 (the 2002 Act) were postponed until 3 April 2009. On that date the judge made a confiscation order depriving Mr Varma of the profits of his crimes to the extent of the amount available for recovery. The judge valued that sum at 1,500 and made a confiscation order in that amount. On 13 July 2009 Mr Varma sought leave to appeal out of time against the confiscation order on the basis that there was Court of Appeal authority (R v Clarke [2009] EWCA Crim 1074) to the effect that the Crown Court has no power to impose a confiscation order against an offender following conviction for an offence in respect of which the offender has been absolutely or conditionally discharged. This reflected the fact that the Court could only discharge an offender where it was of the opinion that it would be inexpedient to inflict punishment; this is subject to a number of specified exceptions listed in section 12(7) of the 2000 Act which the Court would not be prevented from imposing on an offender subject to a discharge. Given that section 12(7) made no reference to confiscation orders the Court in Clarke held that confiscation proceedings could not be brought where an offender is absolutely or conditionally discharged. The Court of Appeal granted permission to appeal, allowed Mr Varmas appeal and quashed the confiscation order, holding that it was bound by the decision in Clarke. However, the Court made clear that, but for the decision in Clarke, it would have reached the contrary conclusion and allowed the confiscation order to be made. The Court of Appeal certified the following point of law of general public importance for consideration by the Supreme Court of the United Kingdom: Does the Crown Court have power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence? The Supreme Court of the United Kingdom granted permission to appeal. The Supreme Court unanimously allows the appeal; the Crown Court has the power and, where the criteria in section 6 of the 2002 Act are satisfied, the duty to make a confiscation order against an offender following conviction for an offence in respect of which the offender has been absolutely or conditionally discharged. Lord Clarke gives the lead judgment with which Lord Dyson and Lord Reed agree. Lord Phillips and Lord Mance give short concurring judgments. Where the criteria in section 6 of the 2002 Act are satisfied the Crown Court is not only empowered to make a confiscation order but, unless it believes the victim of the conduct has started or intends to start civil proceedings against the offender for loss, injury or damage arising from that conduct, is under a duty to make such an order against the offender even where the offender has been absolutely or conditionally discharged following conviction for that offence [58]. The criteria in section 6 of the 2002 Act are satisfied in this case; (a) Mr Varma has been convicted of offences in proceedings before the Crown Court; (b) the prosecutor has requested that the court proceed under section 6 of the 2002 Act; (c) the Crown Court held Mr Varma benefited to the tune of 7,257.86; and, (d) the Court has decided upon the recoverable amount which it valued at 1,500. Consequently, the Court was under a duty to make a confiscation order to the extent of that amount; even where an offender is absolutely or conditionally discharged. There is nothing in the Act which gives the Court the power to decline to exercise its duty to make a confiscation order where the criteria in section 6 of the 2002 Act are satisfied. The Court found that the purpose of section 13(4) of the 2002 Act was neither to prohibit nor to limit the scope of a confiscation order [17]. The reference in section 13(4) of the 2002 Act to deciding the appropriate sentence for the defendant referred to the sentencing process during which the court considers how the defendant should be dealt with. It is unnecessary to decide whether an absolute or conditional discharge constitutes a sentence for these purposes; it is sufficient that an absolute or conditional discharge is an order made as a result of deciding the appropriate sentence within the meaning of section 13(4) of the 2002 Act [17]. Sections 14 and 15 of the 2002 Act contemplate circumstances in which confiscation proceedings may be postponed until after sentence is imposed. The Court holds that such a postponement of confiscation proceedings in no way nullifies the courts duty to return to those proceedings after deciding upon the appropriate sentence [20]. The Court acknowledges that there is no express reference to confiscation orders amongst the measures the courts are not prevented from imposing under section 12(7) of the 2000 Act where an offender is absolutely or conditionally discharged. Nonetheless, the Court holds that the lack of any express reference to a confiscation order in section 12(7) in no way nullifies the duty upon the court to make such an order where the criteria in section 6 of the 2002 Act are satisfied [29 31]. Lord Phillips gives a short concurring judgment in which he questions whether it is legitimate for the Revenue and Customs Prosecution Office (Customs), as the prosecuting authority in this case, to seek a confiscation order rather than seeking to exact the duty payable on the goods [59 60]. Lord Phillips questions whether, in confiscation proceedings, it is legitimate to treat a defendant as having evaded duty where the only reason he has done so is that Customs have chosen not to exact it. Lord Mance gives a short concurring judgment in which he contends that Lord Phillipss suggestion would render it impossible to treat any smuggler as having evaded duty payable on goods, unless and until it is clear that Customs could not pursue and recover the duty. Lord Mance expresses some doubt as to whether that position accurately reflects the ingredients of the criminal offence created by section 170(2) of the Customs and Excise Management Act 1979 [61 63]. |
The appeal raises two distinct legal issues: (1) The definition of sculpture in the Copyright, Designs and Patents Act 1988, and, in particular, the correct approach to three dimensional objects that have both an artistic purpose and a utilitarian function; (2) Whether an English court may exercise jurisdiction in a claim against persons domiciled in England for infringement of copyright committed outside the European Union in breach of the copyright law of that country? This appeal is concerned with intellectual property rights in various artefacts made for use in the first Star Wars film, Star Wars Episode IV A New Hope. The most important was the Imperial Stormtrooper helmet. It has been treated as decisive for the outcome of the case. As the trial judge put it, one of the most abiding images in the film was that of the Imperial Stormtroopers. The films story line and characters were conceived by George Lucas. Between 1974 and 1976 his concept of the Imperial Stormtroopers as threatening characters in fascist white armoured suits was given visual expression in drawings and paintings by an artist, Mr Ralph McQuarrie, and eventually three dimensional form by Mr Andrew Ainsworth. He produced several prototype vacuum moulded helmets. Once Mr Lucas had approved the final version, Mr Ainsworth made 50 helmets for use in the film. The Appellants (here referred to collectively as Lucasfilm) own copyrights in the artistic works created for the Star Wars films. They have built up a successful licensing business, including licensing models of Imperial Stormtroopers. In 2004 Mr Ainsworth used his original tools to make versions of the Imperial Stormstrooper helmet and armour for sale to the public. (The second respondent is a company owned by Mr Ainsworth; for practical purposes, he can be treated as the sole respondent). He sold between $8,000 and $30,000 of the goods in the United States. Lucasfilm obtained judgment against him in the United States. It also commenced proceedings in the English High Court, including claims for infringement of English copyright and claims under US copyright law. By the time of the Supreme Court hearing, Lucasfilm claimed only that the helmets qualified for copyright protection under English law as sculptures and not as works of artistic craftsmanship. In terms of section 4 of the Copyright Designs and Patents Act 1988, copyright subsists in, amongst other things, original artistic works, which includes a sculpture, irrespective of artistic quality. Whether a helmet was a sculpture is significant for two reasons. If it is, any copying of the helmets which Mr Ainsworth had originally produced would infringe Lucasfilms copyright. It is also relevant for the defences which are available. To produce a helmet by working from a drawing of it infringes copyright in the drawing. However, it is not an infringement of any copyright in a design document which records a design for anything other than an artistic work to make an article to the design or to copy an article made to the design: section 51 1988 Act. If the helmet did not qualify as sculpture, and was therefore not an artistic work, Mr Ainsworth had a defence to an English copyright action based on infringement of Mr McQuarries graphics. The High Court dismissed the claims for infringement of English copyright: the helmet was not a work of sculpture and therefore Mr Ainsworth had a defence under section 51. It held, however, that the United States copyright claims were justiciable and that US copyright had been infringed. The Court of Appeal allowed Mr Ainsworths appeal. It agreed that the helmet was not a work of sculpture but held that the US copyright claims were not justiciable. Lucasfilm appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. It holds that the helmets were not sculptures but that the US copyright claims were justiciable in English proceedings. Lord Walker and Lord Collins give a joint opinion, with which the other members of the Court agree. Sculpture issue The court reviews the legislative history of the current statutory provisions and previous authorities as to the meaning of sculpture: [14] [35]. In the High Court, the judge had formulated various guidelines as to the meaning of sculpture. For example, some regard must be had to the normal use of the word sculpture. The concept can apply to things going beyond what one would normally expect to be art, but it is inappropriate to stray too far from what would normally be regarded as sculpture. Not every three dimensional representation of a concept qualifies: [36] [37]. Lucasfilm contended that the helmet was sculpture as it had no practical function at all. Its purpose was wholly artistic, to make a visual impression on the filmgoer. That was not, however, how the trial judge and the Court of Appeal had viewed matters. Mann J found the helmets to be a mixture of costume and prop and that their primary function was utilitarian, namely to express an idea as part of character portrayal in the film. He held that this lacked the necessary quality of artistic creation required of a sculpture. This type of judgmental conclusion was one with which appellate courts should be slow to interfere, as Lord Hoffmann observed in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416: [40] [45]. The judge did not err in law or reach an obviously untenable conclusion: [46]. It would not accord with the normal use of language to apply the term sculpture to, for example, a 20th century military helmet used in the making of a film, however great its contribution to the artistic effect of the finished film. The argument for applying the term to an Imperial Stormtrooper helmet was stronger, because of the imagination that went into the concept of the Stormtroopers. But it remained the Star Wars film itself that was the work of article The helmet was utilitarian in the sense that it was an element in the process of production of the film: [44]. The Court noted that the law did not apply an elephant test, but instead a multi factoral approach: [47]. Justiciability of foreign copyright claim The Court of Appeal had held that the common law rule in British South Africa Co v Companhia de Moambique [1893] AC 602 that an English court had no jurisdiction to entertain an action for the determination of title to, or the right of possession of, foreign land, or the recovery of damages for trespass to such land, was an example of a general principle which applied to claims for infringement of foreign intellectual property rights. The Supreme Court concludes that, provided there is a basis for in personam jurisdiction over the defendant, an English court does have jurisdiction to try a claim for infringement of copyright of the kind involved in the present action: [105]. |
The Competition and Markets Authority (CMA) is the successor in title to the Office of Fair Trading (OFT). In April 2008 the OFT identified 13 parties, including the respondents, as having infringed the Competition Act 1998. In early June 2008 both respondents, along with four other parties, entered into Early Resolution Agreements (ERAs) with the OFT. The ERAs involved the parties admitting infringement and co operating with the OFT in exchange for substantial reductions in the anticipated penalties. A party to an ERA could also appeal against that final decision, notwithstanding the admissions in the ERA, but in that case was liable to have his penalty increased by the Competition Appeal Tribunal (CAT). The Early Resolution process was neither subject to statutory rules nor, at the material time, described in any published document. An internal OFT document nonetheless emphasised Fairness, transparency and consistency as integral to an effective settlement process. An OFT speaking note for use in discussions with parties also included a commitment to equal treatment principles. TM Retail (TMR) was one of the parties which had entered into an ERA. In 2008 the OFT responded to a query from TMR with an assurance that, if it did not appeal, it would get the benefit of any successful appeal made by any of the other parties to the decision. In April 2010 the OFT issued its final decision which made findings of infringement against parties under investigation, including the respondents. Six of those parties appealed to the CAT. Neither the respondents not TMR appealed, but instead chose to pay the reduced penalties imposed in the ERAs. The CAT allowed the appeals of all six appellants. TMR then wrote to the OFT, citing the 2008 assurance and inviting the OFT to withdraw the decision against it. The OFT reached a settlement agreement with TMR whereby the penalty which had been imposed on TMR was repaid with a contribution to interest. The respondents invited the OFT to withdraw the decisions against them, arguing that they should also be given the benefit of the assurances given to TMR. The OFT refused. The respondents ultimately brought judicial review claims. These failed in the High Court but succeeded in the Court of Appeal, which held that the OFTs failure to repay the penalties to the respondents was, in the absence of some objective justification for the difference in treatment compared to TMR, a breach of a public law duty to treat all those under investigation equally. The CMA appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Carnwath gives the lead judgment, with which the other Justices agree. Lord Sumption and Lord Briggs give concurring judgments. Domestic administrative law does not recognise a distinct principle of equal treatment. Consistency is a generally desirable objective, but not an absolute rule [24]. In this case the OFT was applying a single set of legal and policy criteria to a limited group of parties within a single area of business activity, and its commitment to equal treatment had been expressed in terms to those parties. To that extent, they had a legitimate expectation of equal treatment; but that tells one nothing about the legal consequences of such an expectation [29 30]. Although procedural unfairness or impropriety is a well established ground of judicial review, substantive unfairness as such is not. the case law add nothing to the ordinary principles of judicial review by which this case must be judged [31 42]. Even accepting that there was a breach of a legitimate expectation in the failure to replicate the assurances given to TMR in 2008, that would not in itself provide a basis for financial remedy in relation to the events of 2012, nor the reversal of financial penalties which had by then been lawfully imposed on, and accepted by, the respondents. It makes no difference to the result whether one applies a test of objective justification or one of rationality [43]. All those who entered ERAs knew of the possibility that other parties would appeal successfully. That was a risk the respondents took knowingly. TMR did not. TMR sought and obtained an assurance on which it claimed to have relied. In 2012 the OFT could reasonably take the view that, if the assurance were not honoured, TMR would have had a strong case for permission to appeal to the CAT out of time, whereas the respondents did not. If objective justification were needed for OFT taking a different approach to TMR, that was sufficient. [44 45]. Lord Sumption adds that the assurance given to TMR was a mistake because it was inconsistent with the OFTs policy of non discrimination, the terms of the ERA under discussion, and the purpose of the Early Resolution procedure [51 52]. That, however, cannot affect the position of the respondents, each of whom had entered into a distinct ERA which was intended finally to resolve the issues which were the subject of the CAT appeals, subject only to their right to either (i) terminate the ERA before the final OFT decision or (ii) appeal to the CAT after that decision. They invoked neither option, thus accepting the risk that they would not benefit from any other partys successful appeal but ensuring that they would retain the benefit of the discounted sanction if the appeals failed. Finality and certainty required that they should live with the consequences [53]. The assurance to TMR was in no sense given at their expense. They had no right to such an assurance. The OFTs mistake was that they gave the assurance to TMR, not that they failed to give it to the respondents. It was not irrational for the OFT in 2012 to repay the penalty to TMR after the appeal while not repaying the respondents, because having failed to appeal in reliance on the assurance, TMR would otherwise have been entitled to obtain leave to appeal out of time. Since they were in materially the same position as the six successful appellants, their appeal would have succeeded. Therefore, while the decision was discriminatory, the discrimination was objectively justified. Unlike TMR, the respondents had no basis for a late appeal to the CAT [54 56]. Lord Briggs adds that, where a public authority has the option to avoid replicating an earlier mistake but at some cost to equal treatment, the choice is one for the authority rather than the court, subject to the usual constrains of lawfulness and rationality. The OFTs conduct did not transgress those boundaries. The circumstances amount to a powerful objective justification for the unequal treatment: (i) the assurance to TMR was a mistake, (ii) its withdrawal in 2012 likely would have left TMR even better off than if the assurance were honoured, and (iii) the respondents had neither received nor relied upon any similar assurance. On any view the OFT made a rational choice between unpalatable alternatives, with which the court should not interfere [62 63]. |
Mrs HC is an Algerian national who has been living in the UK since 2009. She arrived with leave but then over stayed. In 2010 she married a British national on whom she depended financially. She had two children by him, in 2011 and 2013. Her children are British nationals. The relationship ended after domestic violence in late 2012, when Mrs HC sought help from her local authority. Oldham City Council, after initially refusing, agreed to provide Mrs HC and her children with temporary housing and 80.50 per week for subsistence and utilities, under section 17 of the Children Act 1989. It is common ground that Mrs HC is entitled to reside in the UK as the carer of her children, due to decision of the Court of Justice of the European Union (CJEU) in Zambrano v Office nationale de lemploi (Case C 34/09) [2012] QB 265. In Zambrano the CJEU held that an EU member state could not take measures in respect of a non EU citizen who was the primary carer (a Zambrano carer) of an EU citizen, where those measures effectively deprive that dependent EU citizen of the genuine enjoyment of his or her rights under EU law. In response to the Zambrano decision, the UK government introduced regulations which amended legislation to preclude Zambrano carers from claiming various income related benefits: (i) The Social Security (Habitual Residence) (Amendment) Regulations 2012; (ii) The Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012; (iii) The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (collectively, the Regulations). Mrs HC challenges the legality of the Regulations. Mrs HC contends that the denial of mainstream welfare and housing provision to a Zambrano carer and her child is unlawful, because it amounts to unlawful discrimination under article 21 of the EU Charter of Fundamental Rights and Freedoms (the Charter) and/or under article 14 of the European Convention of Human Rights (ECHR). The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment, with which Lord Clarke, Lord Wilson and Lord Sumption agree. Lady Hale gives a concurring judgment. In Zambrano and subsequent cases, the reasoning of the CJEU turned solely on the risk that the dependents of Zambrano carers might be forced to leave the EU, thereby being deprived of the enjoyment of their rights as EU citizens. That Zambrano right of residence is exceptional and is not triggered merely by the desirability of keeping the family together. It is not a right to any particular quality of life or standard of living [8 15]. It was argued on behalf of Mrs HC that in EU law, once a right of residence is established, the Zambrano carer is automatically entitled to the same social security assistance as nationals of the host state. That argument relied on the judgment of the CJEU in Baumbast v Secretary of State for the Home Department [2002] ECR I 7091, as followed in Ibrahim v Harrow London Borough Council and Teixeira v Lambeth Borough Council (Joined Cases C 310/08 and C 480/08) [16 20]. This Court rejects the analogy with those cases for two reasons. First, those cases concerned whether rights of residence were subject to conditions derived from EU law. The rights asserted in those cases were not limited by domestic law. Conversely the issue in this case is whether the Regulations, which limit Mrs HCs entitlement to assistance, comply with EU law. Second, the argument that a right of residence triggers a right to equal treatment under EU law relies on article 21 of the Charter. This begs the question of whether the Charter applies to this case at all [21]. According to article 51 of the Charter, the Charter applies to EU member states only when they are implementing EU law. As a result, the test for the applicability of the Charter is not whether Mrs HC was personally within the scope of EU law; it is whether the Regulations were implementing EU law [22 28]. EU law requires no more for the children of a Zambrano carer than the practical support necessary for them to remain in the EU. It is common ground that the limited financial support provided to Mrs HC and her children is sufficient for them to remain. It follows that Mrs HC cannot rely on the Charter to establish a right to further financial assistance [5, 28 29]. The measures adopted by the UK do not amount to unlawful discrimination under article 14 of the ECHR. Discrimination on the basis of immigration status is an accepted part of EU and national law and cannot in itself give rise to an issue under article 14. Insofar as Mrs HC relies on differences between her treatment as a Zambrano carer specifically and the treatment of others, such differences only reflect the rules of EU law which created her Zambrano carer status. In any event, the European Court of Human Rights has accepted that the allocation of public funds in the social security context is primarily a matter for national authorities, provided that allocations are not manifestly without reasonable foundation. The objectives underlying the Regulations cannot be said to fall outside that wide margin of discretion allowed to national governments [31 32]. No issue arises in the appeal as to the scope of the local authoritys duties under section 17 of the Children Act 1989, but that provision is now an important aspect of the governments response to the Zambrano principle. Section 17 confers a duty on local authorities to promote the welfare of the children in their area and, insofar as consistent with that, to promote the upbringing of such children by their families [33 34]. In this case, the duty arises from a responsibility imposed by EU law, but the allocation of that responsibility as between central and local government is a matter of domestic law only. That does nothing to diminish the importance of the duty under section 17. It is appropriate to provide guidance at a national level for the various local authorities discharging that duty [36 37]. In her concurring judgment, Lady Hale adds that a local authority reviewing the needs of the children for the purposes of section 17 will no doubt consider: (i) the need to promote actively the welfare of the children, when exercising various statutory powers; (ii) the fact that these children are British, with the right to remain here for the rest of their lives; (iii) the impact on the proper development of the children which would follow if they were denied a level of support equivalent to their peers [43 46]. The other members of the Court agree with those observations [37]. In Lady Hales view the administration of section 17, unlike the Regulations, could be said to implement EU law by enabling the children to remain in the UK. If the Charter were applicable to the administration of section 17, it might be possible to regard discrimination against the children of Zambrano carers in that context as falling within article 21 of the Charter. In that case, the justifications presently offered on behalf of the Secretary of State would be unimpressive. But section 17 is one way of providing these children with what they need and deserve. The availability of alternatives, which are in some ways preferable, does not mean that the UK is in breach of EU law [48 52]. |
This appeal is concerned with the meaning and effect of section 28 of the Family Law (Scotland) Act 2006 which, for the first time, enables a cohabitant to apply to the court for a financial provision where the cohabitation ends otherwise than by the death of one of the parties. The court may make an order for payment by the other cohabitant of a capital sum, having regard to whether that party (the defender) has derived economic advantage from contributions made by the applicant and whether the applicant has suffered economic disadvantage in the interests of the defender or any child. The court must then have regard to the extent to which any economic advantage derived by one party is offset by economic disadvantage suffered by that party, or economic disadvantage suffered by one party is offset by economic advantage derived by that party. The Appellant, Mrs Gow, met the Respondent, Mr Grant in 2001, when she was about 64 years old and he was about 58. They commenced a relationship, and in about December 2002 Mr Grant asked Mrs Gow to move in with him at his home in Penicuik. Mrs Gow agreed to do so if they became engaged, which they then did. They lived together as husband and wife and engaged in an active social life together until January 2008, when their relationship came to an end. When the parties met Mrs Gow also owned a flat in Edinburgh. After the couple moved in together, Mr Grant strongly encouraged Mrs Gow to sell her property, which she did in June 2003. The sheriff held that there was no evidence that Mrs Gow was forced to sell the flat because she was in financial difficulties. Rather, she had sold the property in the interests of furthering her relationship with Mr Grant. The net proceeds of the sale had been used partly for her own purposes and partly for the couples living expenses. Mrs Gow continued to live in Mr Grants home until she obtained rented accommodation in June 2009. The sheriff found that the value in July 2009 of Mrs Grants former flat was 88,000. The difference between that figure and the price at which the flat was sold in June 2003 was 38,000. The sheriff also heard evidence that during their cohabitation the parties purchased two timeshare weeks in their joint names, each of which cost 7,000. Mrs Gow paid 1,500 towards the first week, and the whole price of the second week. The sheriff recognised that the language of section 28 allowed her a discretion to make an order and that a precise calculation of loss, based on specific payments and receipts, did not require to be made. Her conclusion, having regard to the relevant matters, was that Mrs Gow had suffered a net economic disadvantage, and that she should be compensated in the sum of 39,500. Mr Grants appeal to the Inner House was allowed and the sheriffs award of a capital sum to Mrs Gow was set aside. The Supreme Court unanimously allows Mrs Gows appeal, overturns the decision of the Second Division, and affirms the sheriffs finding that the Appellant has suffered economic disadvantage in the interests of the Respondent to the extent of 39,500. The leading judgment is given by Lord Hope, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Carnwath agree. A concurring judgment is also given by Lady Hale, with whom Lord Wilson and Lord Carnwath also agree. Section 28 does not seek to replicate the arrangements that are available for financial provision on divorce or the termination of a civil partnership. For this reason it would not be right to adopt the same approach to the application of that section as would be appropriate if the exercise was being conducted under section 9 of the Family Law (Scotland) Act 1985. That would be to impose a regime of property sharing, and in some cases, continuing financial support, on couples who might well have opted for cohabitation to avoid such consequences. But it is sufficiently clear from the background to the enactment of section 28 that in its case too the underlying principle is one of fairness. The section is designed to enable the court to correct imbalances arising out of a non commercial relationship where parties are quite likely to have made contributions or sacrifices without counting the cost or bargaining for a return. The statutory purpose does no more than reflect the reality that cohabitation is a less formal, less structured and more flexible form of relationship than either marriage or civil partnership [35]. It would therefore be wrong to approach section 28 on the basis that it was intended simply to enable the court to correct any clear and quantifiable economic imbalance that may have resulted from the cohabitation. That is too narrow an approach. Section 9(1)(b) of the 1985 Act enables fair compensation to be awarded, on a rough and ready valuation, in cases where otherwise none could be claimed. Section 28 of the 2006 Act is designed to achieve that effect. So it may be helpful to refer to cases decided under section 9(1)(b) when the court is considering what might be taken to be an economic advantage, disadvantage or contribution for this purpose or how the economic burden of caring for a child is to be dealt with under section 28(2)(b). An assessment of what is in the interests of any relevant child cannot simply be reduced to purely financial factors [36]. The phrase in the interests of the defender can be taken to mean in a manner intended to benefit the defender as the Second Division indicated. But it does not compel that interpretation, and in the present context, where the guiding principle is one of fairness, its more natural meaning is directed to the effect of the transaction rather than the intention with which it was entered into. Provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant [38]. The sheriff was therefore entitled to take the sale of the house into account, notwithstanding her findings that the proceeds were used by Mrs Gow for her own purposes or to meet the parties joint living expenses, that it was encouraged by Mr Grant and that it was in the interests of furthering the parties relationship [39]. The sheriff was also entitled to hold that the loss of the benefit of the increase in value was an economic disadvantage, and that it was suffered by Mrs Gow in the interests of her relationship with Mr Grant. When the cohabitation ended Mrs Gow did not have a home whereas Mr Grant still had a home which had increased in value. Mrs Gow should be compensated for that disadvantage [40]. In relation to the sums spent on acquisition of the timeshare, this was a matter for the discretion of the sheriff. Her note indicates that this part of her award was arrived at after carrying out a careful analysis of all the facts. The Second Division therefore had no proper basis for disturbing this part of the award [41 42]. Lady Hale states that there are lessons to be learned from this case in England and Wales. There is a need for some such remedy south of the border. Sufficient basis for changing the law has been amply provided by the long standing judicial calls for reform; by the Law Commissions analysis of the deficiencies in the present law and the injustices which can result; by the demographic trends towards cohabitation and births to cohabiting couples, which are even more marked south of the border than they are in Scotland; and by the widespread belief that cohabiting couples are already protected by something called common law marriage which has never existed in the south [50]. The main lesson from this case, as also from the research carried out in Scotland and England to date, is that a remedy such as this is both practicable and fair, focusing on where parties were at the beginning of the relationship and where they are at the end. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship [56]. |
Lady Arden explains that neither the Coroners and Justice Act 2009 (the Act) nor the European Convention on Human Rights requires any particular standard of proof for conclusions at an inquest [2,12]. There was case law to the effect that conclusions of suicide and unlawful killing should be reached on the criminal standard [60, 70]. A coroners inquest is not, however, a criminal proceeding [2]. The Coroners (Inquests) Rules 2013 (the Rules) contain a form which must be used to record the result of an inquest [15]. Note (iii) to this form explains that the standard of proof for short form conclusions of suicide and unlawful killing is the criminal standard and that for other conclusions the civil standard applies [16]. Adopting Wilson LJs reasoning in R (LG) v Independent Appeal Panel for Tom Hood School [2010] EWCA Civ 142; [2010] PTSR 1462 Lady Arden holds that the Rules could prescribe standard of proof. The issue is whether the effect of Note (iii) is to require a particular standard. The Ministry of Justice (the MoJ) consulted on the Rules in draft [24]. The MoJs response document explained that case law had established the standard of proof and the Rules could not change the law [26 27]. Lady Arden holds that that response is relevant to interpreting Note (iii) and shows that Parliament did not intend to change or codify the law as it understood it to be [42]. A footnote can lay down a new legal rule (Hunt v R M Douglas (Roofing) [1990] 1 AC 398) but the circumstances of that case were very different [43]. The contrary result in this case would contravene the drafting conventions on which our unwritten constitution depends [44]. On its true interpretation, Note (iii) did not take away the power of the courts to develop the common law [56]. Lady Arden concludes that, consistently with legal principle, the civil standard of proof applies to short form conclusions of suicide [68]. The previous case law is not binding on the Supreme Court and does not identify a good reason against applying the civil standard [70]. To apply different standards of proof for short form and narrative conclusions leads to an internally inconsistent system of fact finding [71]. If a criminal standard of proof is required, suicide is likely to be under recorded [73 74]. Societal attitudes to suicide have changed and the role of inquests has developed to be concerned with the investigation of deaths, not criminal justice [75 81]. Also, certain Commonwealth jurisdictions have aligned the standard of proof applicable in inquests with the standard applicable in civil proceedings [82]. Lady Arden holds that the civil standard of proof also applies to determinations of unlawful killing [93],[96]. There is then consistency between the determinations made at an inquest [96]. In his concurring judgment, Lord Carnwath considers that the Act does not indicate that the civil standard of proof cannot apply a conclusion of suicide [100]. In his view, Note (iii) does not have that effect. The public consultation materials confirm that position [107]. Lord Kerr in his dissenting judgment holds that the criminal standard of proof applies to short form conclusions of suicide and unlawful killing [143]. There is no inconsistency caused by a short form and narrative conclusion having different standards of proof [116]. There is nothing untoward in putting suicide and unlawful killing in a special category of verdicts that require proof to the criminal standard [139]. Note (iii) to the form did not attempt to change the law, but confirmed what the existing law was. As a result, the common law rule became a statutory rule [125]. It can only cease to have effect if Parliament enacts a statutory provision to amend or abolish it [126]. The Rules unquestionably established a statutory basis for the application of the criminal standard of proof for short form conclusions of suicide and unlawful killing [132]. Lord Reed agrees with Lord Kerr. |
The appeal concerns the nature and assessment of paid annual leave required by the Civil Aviation (Working Time) Regulations 2004 (the Regulations). The appellants are pilots employed by the respondent (British Airways). Their terms of employment are found in a Memorandum of Agreement (MOA). The MOA provides for pilots to receive a fixed annual sum plus two supplementary payments varying according to the time spent flying, namely the Flying Pay Supplement (FPS) of 10 per flying hour and the Time Away From Base allowance (TAFB) paid at 2.73 per hour. TAFB was introduced in place of meal allowances and to cover other costs. Pilots are taxed on 18% of TAFB as the tax authorities regard it as providing more than needed purely for costs. The two supplementary payments are subject to limits because pilots are limited to a number of permissible hours flying or on duty each year. The MOA requires pilots to take a certain period of annual leave and entitles them to take periods of additional leave. When on leave, pilots are paid the basic fixed pay. Pilots are required to receive paid annual leave under the Regulations, which implemented the provisions of Council Directive 2000/79/EC (the Aviation Directive). The appellants brought claims against British Airways arguing that pursuant to the Regulations, they were entitled to both the supplementary payments as well as the fixed annual sum as part of their paid annual leave. They succeeded in the Employment Tribunal and the Employment Appeal Tribunal, but the Court of Appeal allowed British Airways appeal. In 2010 the Supreme Court heard the appellants appeal against that judgment, and decided it was under a duty to refer five questions concerning the interpretation of the relevant European law on the meaning of paid annual leave to the Court of Justice of the European Union (CJEU) (British Airways plc v Williams [2010] UKSC 16). The CJEU gave its response in a judgment dated 15 September 2011 (British Airways v Williams (Case C 155/10) [2012] ICR 847). The matter thereafter returned to the Supreme Court to rule on its consequences for the dispute between the parties. The Supreme Court, in the light of the judgment of the CJEU, unanimously remits the appellants claims to the Employment Tribunal for further consideration of the appropriate payments to be made to them in respect of periods of paid annual leave. The judgment is given by Lord Mance. The CJEU had ruled that the purpose of the requirement for paid annual leave in the Aviation Directive was to put the worker in a position which was, as regards remuneration, comparable to periods of work. A specific analysis of the various components of a workers pay was required. Any aspect which is linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment .such as, in the case of airline pilots, the time spent flying was to be taken into account. By contrast, components intended exclusively to cover occasional or ancillary costs arising at the time of performance need not be. It was for the national court to assess whether the various components comprising the workers total remuneration met those criteria, such assessment to be carried out on the basis of an average over a reference period which was judged to be representative [9 14]. The appellants argued that their claims should now be remitted to the Employment Tribunal for assessment, and that their remuneration on leave should include basic pay, FPS and 18% of TAFB. British Airways, however, submitted that the Regulations were too unspecific to give effect to the Aviation Directive and the requirement for an average over a reference period which is judged to be representative required a detailed legislative scheme which could not by supplied by an employment tribunal [15 19]. The wording of regulation 4 of the Regulations was taken from article 7 of the Aviation Directive. The same principles must govern the wording of both. If British Airways choice of a representative reference period was not acceptable to an individual pilot, a court or tribunal could take its own view. Even though the Regulations did not expressly address complaints relating to the payment of annual leave, complaint to a court was in fact permitted by Regulation 18(1) in respect of a refusal by an employer to permit the exercise of any right enjoyed by the employee under Regulation 4 and compensation could be awarded under Regulation 18(4) [20 27]. As for the proportion (if any) of TAFB to be included in paid annual leave, the test stated by the CJEU excluded sums intended exclusively to cover costs. The Supreme Court did not have the material before it to determine the real basis for the payment of TAFB and British Airways genuine intention would need to be considered by the employment tribunal. The attitude of the tax authorities was irrelevant [28 32]. |
Mr Kiarie has Kenyan nationality. He came to the UK in 1997 with his family at the age of three. Mr Byndloss has Jamaican nationality. He has lived in the UK since the age of 21 and has a wife and children living in the UK. Following their separate convictions for serious drug related offences, in October 2014 the respondent made orders for their deportation to Kenya and Jamaica respectively and rejected the appellants claims that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (ECHR). When making the deportation orders, the Home Secretary issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002. In certifying the appellants claims under section 94B, the respondent chose not to instead certify their human rights claims as clearly unfounded under section 94, indicating that their appeals were arguable. The effect of section 94B certification is that the appellants can bring their appeals against the respondents immigration decisions only after they have returned to Kenya and Jamaica. Until 30 November 2016, section 94B provided that where a human rights claim had been made by a person liable to deportation, the Secretary of State may certify the claim if she considers that the removal of the person pending the outcome of their appeal would not be unlawful under section 6 of the Human Rights Act 1998 and that the person would not face a real risk of serious irreversible harm if removed to that country. The court stresses that this appeal is not about the circumstances in which a person can successfully resist deportation by reference to his private or family life. It recently addressed that question in the case of Ali and ruled that he can do so only if the circumstances are very compelling. The question in this appeal is: where the law gives such a person a right to appeal to a tribunal against a deportation order, then, however difficult it may be for him to succeed, does the Home Secretary breach his human rights by deporting him before he can bring the appeal and without making proper provision for him to participate in the hearing of it? The Court of Appeals answer was no. The Supreme Court unanimously allows the appeal of Mr Kiarie and Mr Byndloss and quashes the certificates. Lord Wilson gives the lead judgment, with which Lady Hale, Lord Hodge and Lord Toulson agree. Lord Carnwath gives a concurring judgment. The fundamental objective of section 94B arises from the fact that the appellants are foreign criminals and, by virtue of section 32(4) of the UK Borders Act 2007, the deportation of a foreign criminal is conducive to the public good [32 33]. However, Parliament gave foreign criminals a right of appeal against a deportation order by enacting section 82(1) and (3A) of the Nationality, Immigration and Asylum Act 2002. The public interest in the removal of an appellant in advance of his appeal is outweighed by the public interest that a right of appeal should be effective [35]. In proceedings for judicial review of a section 94B certificate, the tribunal must decide for itself whether deportation in advance of appeal would breach the appellants ECHR rights. It must assess for itself the proportionality of deportation at that stage, albeit attaching considerable weight to public policy considerations relied on by the respondent [42 43]. The application of the Wednesbury criterion to the right to depart from the Home Offices findings of fact, even when heightened to anxious scrutiny, is inapt. Under section 6 of the Human Rights Act 1998, the court may require to be more proactive than application of that criterion would permit. The residual power of the court to determine facts, and to receive evidence including oral evidence, needs to be recognised [47]. Article 8 requires that an appeal against a deportation order by reference to a claim in respect of private and family life should be effective [51 52]. While the effect of an appellants immediate removal from the UK is likely to significantly weaken his arguable appeal [58], what is determinative of these appeals is whether the issue of a section 94B certificate obstructs an appellants ability to effectively present his appeal against the deportation order [59]. In an appeal brought from abroad, the appellants ability to present his case is likely to be obstructed in a number of ways. Even if he is able to secure legal representation, the appellant and his lawyer would face formidable difficulties in giving and receiving instructions prior to and during the hearing [60]. Further, the effectiveness of an arguable appeal is likely to turn on the ability of the appellant to give live evidence to assist the tribunal in its assessment of whether he is a reformed character and the quality of his relationships with others in the UK, in particular with any child, partner or other family member [61, 63]. An effective appeal requires that the appellants are afforded the opportunity to give live evidence [76]. While the giving of evidence on screen is not optimum, it might be enough to render the appeal effective for the purposes of article 8, provided that the opportunity to give evidence in that way is realistically available to them [67]. However, the financial and logistical barriers to their giving evidence on screen from abroad are almost insurmountable. The respondent has therefore certified article 8 claims of foreign criminals under section 94B in the absence of a ECHR compliant system for the conduct of an appeal from abroad. The Ministry of Justice has failed to make provision for facilities at the hearing centre, or for access to such facilities abroad, as would allow the appellants to give live evidence and participate in the hearing [76]. Deportation pursuant to the certificates would therefore interfere with the appellants rights to respect for their private and family life in the UK pursuant to article 8 and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The respondent has failed to establish that deportation in advance of appeal strikes a fair balance between the rights of the appellants and the interests of the community and therefore the decisions to issue the certificates were unlawful [78]. In a concurring judgment, Lord Carnwath concludes that an effective appeal for the purposes of article 8 is unlikely to turn on subjective issues requiring the appellant to give direct evidence, such as whether the appellant is a reformed character [100]. However, it is wrong in principle for the respondent, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellants case or the evidence on which he chooses to rely. The respondent must be able, at the time of certification, to satisfy herself that the necessary facilities can and will be provided [102]. |
The dispute which has given rise to this appeal is a product of the failure of Icelands entire banking system in the autumn of 2008. The issue is how cross claims between two credit institutions are to be dealt with in insolvency proceedings in two different states in the European Economic Area (the EEA). Landsbanki Islands hf (Landsbanki) is an Icelandic company. Its wholly owned subsidiary, Heritable Bank plc (Heritable), is a Scottish company. Both companies have been in formal insolvency since 7 October 2008. On that date, the Court of Session appointed joint administrators to Heritable, and the Financial Services Authority of Iceland took control of Landsbanki. The District Court of Reykjavik later appointed a winding up board to Landsbanki [1 3, 38]. The relevant European legislation is Directive 2001/24/EC of 4 April 2001 on the reorganisation and winding up of credit institutions (the Directive), which applies to EU Member States and non EU countries in the EEA, including Iceland. The Directive was implemented in the UK by The Credit Institutions (Reorganisation and Winding up) Regulations 2004 (the Regulations). Landsbanki is an EEA credit institution for the purpose of Part 2 of the Regulations. Heritable is a UK credit institution for the purposes of Parts 3 and 4. Regulation 5 in Part 2 of the Regulations provides in essence that an EEA insolvency measure has effect in the UK in relation to the branches of an EEA credit institution, its property and assets, and its debts and liabilities, as if it were part of the general law of insolvency of the UK [2, 4, 23, 33]. Landsbanki submitted a total of four claims in Heritables administration in Scotland, but only one, submitted in December 2008 for about 86m in respect of a revolving credit facility governed by English law, is the subject of this appeal. Heritables administrators rejected that claim in November 2009, applying the Scots law rule on the balancing of accounts in bankruptcy, on the ground that Heritable had claims against Landsbanki which equalled or exceeded the amount of Landsbankis claim and which served to extinguish it. Later in November 2009, Landsbanki appealed to the Court of Session in Scotland against the administrators decision. In October 2009 Heritable had submitted four claims in Landsbankis winding up in Iceland. In January 2010 Landsbankis winding up board rejected three and accepted the fourth in a reduced amount. Heritables administrators formally objected to these decisions in February 2010 [5 10]. In the Court of Session appeal in Scotland, Landsbanki argued that the rejection of Heritables claims had effect and was binding in the UK in terms of regulation 5 of the Regulations, and that Heritables administrators were therefore bound to hold that Heritable had no claim against Landsbanki which could operate by way of set off. Heritable argued that Landsbankis argument was irrelevant. In Iceland, Heritables administrators asked that no further steps be taken in relation to their objections until Landsbankis Court of Session appeal in Scotland had been finally determined. Landsbankis winding up board declined this request and referred the objections to the District Court of Reykjavik in March 2010. Heritables administrators unsuccessfully sought a stay of those proceedings pending a determination of the point before the Court of Session [10, 12]. Back in Scotland, the Lord Ordinary in the Court of Session found in favour of Landsbanki in July 2010 after a debate. Following this decision, Heritables administrators withdrew Heritables claims from Landsbankis winding up in August 2010. Landsbanki then issued a counterclaim in the proceedings in the District Court of Reykjavik seeking a declaration that the Heritable claims had been extinguished. Heritables administrators successfully applied to discontinue the proceedings before the District Court of Reykjavik and the appeal of Landsbankis winding up board to the Icelandic Supreme Court was unsuccessful. Back again in Scotland, Heritable appealed against the Lord Ordinarys decision and the Inner House of the Court of Session reversed the Lord Ordinary in September 2011. Landsbanki now appeal to the Supreme Court. The issue is whether Heritables claims, extinguished as a matter of Icelandic law, are to be treated as extinguished in Heritables administration so that Heritables administrators cannot use them to set off Landsbankis claim [11, 13 16, 22, 43]. The Supreme Court unanimously dismisses Landsbankis appeal. It affirms the decision of the Inner House of the Court of Session. The judgment is given by Lord Hope with whom all the other Justices agree [62]. Heritables administrators may use the Heritable claims by way of set off against Landsbankis claim. The key to a proper understanding of regulation 5 lies in an appreciation of the fact that, while it is designed to give effect to the mandatory choice of the law of insolvency of the EEA state in which the foreign credit institution is located, it is not concerned in the least with the effects of the mandatory choice of Scots law for the administration of Heritable in Scotland. Those effects are provided for in Parts 3 and 4 of the Regulations, which have nothing to do with the effects of the mandatory choice of the law of Iceland for the winding up of Landsbanki [58]. Seen in the context of Part 2 of the Regulations (which is concerned with jurisdiction in relation to credit institutions), there is nothing remarkable about what regulation 5 sets out: even if an EEA credit institution has branches in the UK, the entire process of winding up must be conducted in its home state. Applied in this case, regulation 5 provides, among other things, that Landsbankis property or assets located in Scotland are not to be disposed of in accordance with Scots law, and that steps by a creditor to enforce a claim against Landsbanki are to be pursued solely in the proceedings in Iceland. For the purposes of the winding up, decisions taken by the winding up board are to be given effect in Scotland. In this way the integrity of the exclusive jurisdiction that is given to Iceland is preserved. But the provisions of regulation 5 are concerned only with the winding up in Iceland in relation to Landsbanki and it is only for that purpose that the winding up is to have effect as if it were part of the general law of insolvency in the UK. The provisions do not apply to the administration of Heritable in Scotland. The rules which apply to Heritable are set out in Parts 3 and 4 of the Regulations [52 54]. Regulations in Parts 3 and 4 provide that the general law of insolvency has effect in relation to UK credit institutions and that matters such as the conditions under which set off may be invoked and the rules governing, among other things, the admission and ranking of claims are to be determined in accordance with the general law of insolvency of the UK. They also preserve the right of creditors to demand the set off of their claims against the claims of the insolvent credit institution, where set off is permitted by the law applicable to the credit institutions claim. Issues of set off are therefore to be determined as the common law of Scotland requires, according to the proper law of the contract. That rule is conceived in the interests of creditors in other EEA states, bearing in mind that exclusive jurisdiction is given to the UK as the home state. The creditors right to claim set off is put onto the same basis as creditors in the UK [56, 57]. Although not decisive, Landsbankis argument also produces an arbitrary and unprincipled outcome. Its logic is that Heritables claims against Landsbanki would have been extinguished even if Heritable had been a wholly solvent company. The only way for Heritable to have avoided the extinguishment of its claim and therefore retained the right to use it by way of set off would have been for it to lodge and maintain it in Landsbankis winding up, even if it would not have been cost effective to do so or the prospects of recovery were nil. The effect of Landsbankis argument would also be to give universal priority to the process in which a decision happened to be made first. That would encourage forum shopping, especially where there was a prospect of inconsistent findings as to the validity of a claim in different states. It is hard to believe that this was intended by the framers of the Directive [59 61]. |
In June 1981, Mr McGeough was implicated in the attempted murder of Samuel Brush, a postman and member of the Ulster Defence Regiment who was shot in County Tyrone. In the course of the attack, Mr Brush managed to fire a gun at his assailants, striking one of them. Mr McGeough subsequently presented at a nearby hospital with a gunshot wound from what was later determined to be Mr Brushs weapon. He received treatment there and at a hospital in Dublin and, despite being placed under police guard, he managed to escape and leave the country. In August 1983 Mr McGeough applied for asylum in Sweden. The application was supported by the appellants account of his life, from which it appeared that he had been an operational member of the Irish Republican Army and had participated in the attack on Mr Brush. His application for asylum was dismissed, as was his subsequent appeal against the dismissal. In November 2010, the appellant was tried at Belfast Crown Court for attempted murder and possession of a firearm. He was convicted of both offences and neither conviction is challenged in this appeal. At the same time, he was tried on two charges of membership of a proscribed organisation (the Irish Republican Army), those charges being based on the material contained in the Swedish asylum application. An application was made during the course of the trial that the Swedish material should not be admitted in evidence, either because it should be excluded under section 76 of the Police and Criminal Evidence Act 1984 (PACE) as having such an adverse effect on the fairness of the trial that it should not be admitted, or because the admission of the evidence would offend the rule against self incrimination. Having heard evidence from a Swedish legal expert, the trial judge rejected the appellants application on the basis that there was nothing in Swedish law, nor in Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status (the Procedures Directive), nor in general public policy considerations which prevented the disclosure by Sweden of the material in the asylum application to UK prosecuting authorities. The appellant had been represented in Sweden by lawyers who must have told him of the Swedish rule that the papers in an asylum application were open public documents. The conditions necessary for exclusion of the material under section 76 PACE were therefore not present. Further, the appellant had not been under compulsion when providing the information in the asylum application so the privilege against self incrimination was not engaged. The Swedish material was admitted in evidence and the appellant was convicted of the charges of membership of a proscribed organisation. The Court of Appeal dismissed the appellants appeal against conviction. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the only judgment, with which the other Justices agree. The need for candour in the completion of an asylum application is self evident, but that should not be regarded as giving rise to an inevitable duty of confidence over material contained in them [22]. There is no explicit requirement in the Procedures Directive that material disclosed by an applicant for asylum should be preserved in confidence for all time and from all agencies, just that (per Article 22 of the Procedures Directive) it should not be disclosed to alleged persecutors or in the course of examining the individual case (neither of which applied here) [23]. Nor does the overall purpose of the Directive assist the appellant in establishing a general prohibition on disclosure: Article 22 is precisely worded and to read into it a general duty of confidence would unwarrantably enlarge its scope [24, 27]. Article 41 of the Directive requires member states implementing the Directive to abide by the confidentiality principle as defined in national law [25]. Swedish law does not contain a duty of confidentiality over information supplied in support of an asylum application where that application has been unsuccessful, but favours such applications entering the public domain [26]. The material provided by Sweden was lawfully supplied and the authorities in this country had a legal obligation to make appropriate use of it if it revealed criminal activity [28]. Whether the material would have been treated differently if it had originated in the United Kingdom did not affect the manner in which the trial judge was required to approach his decision under section 76 PACE. The judge was plainly right to refuse the application [29]. Further, the absence of compulsion in the case of an application for asylum renders comparisons with situations involving compulsion (such as the requirement to answer questions under section 98 of the Children Act 1989) inapt. The rule against self incrimination does not require a prohibition on the use of evidence obtained through a non compulsive procedure such as an application for asylum [30]. |
In 2005 the appellant, Mr Barton, brought a claim alleging professional negligence against a law firm, Bowen Johnsons, which had acted for him in 1999. The respondent law firm, Wright Hassall LLP, initially acted for him in that negligence claim, until they applied to come off the record following a dispute about fees. Mr Barton unsuccessfully resisted that application and was ordered to pay the costs. His appeal against that costs order was dismissed, also with costs against him. In the meantime, acting in person, he had settled the proceedings against Bowen Johnsons. Two actions followed between Mr Barton and Wright Hassall. In the first, Wright Hassall successfully claimed their costs of acting for him before they came off the record. The second was the present action against them, which Mr Barton, acting in person, began by a claim form issued on 25 February 2013. Under rule 7.5 of the Civil Procedure Rules a claim form is valid for four months from the issue date. His claim alleged that Wright Hassall had breached their duties to him in their conduct of the action against Bowen Johnsons and in coming off the record when they did. Mr Barton claimed damages reflecting: (i) difference between the settlement sum and the alleged value of his claim and (ii) the costs of resisting Wright Hassalls application to come off the record and of his appeal on costs. Wright Hassall had in March 2012 instructed solicitors, Berrymans Lace Mawer, who had emailed Mr Barton asking him to address all future correspondence to them. On 17 April 2013 Berrymans sent Mr Barton an email which ended: I will await service of the Claim Form and Particulars of Claim. On 24 June 2013, the last day before the expiry of the issued claim form, Mr Barton sent them an email which began: Please find attached by means of service upon you. 1. Claim Form and Response Pack On 4 July 2013 Berrymans wrote to Mr Barton, saying that they had not confirmed that they would accept service by email. In the absence of that confirmation, email was not a permitted mode of service. They added that the claim form had expired unserved and that the claim was now statute barred. A claimant who cannot properly serve the claim form within four months may apply for either: (i) an extension under rule 7.6 of that period or (ii) an order under rule 6.15 that an otherwise non compliant step be treated as good service. Before the District Judge, Mr Barton pursued both options as alternatives to his primary case that his service complied with the rules. He failed but was permitted to appeal on whether his purported service by email should be validated. The Circuit Judge held that it should not. The Court of Appeal upheld that order. Mr Barton appealed to this Court. The Supreme Court dismisses the appeal by a majority of three to two. Lord Sumption, with whom Lord Wilson and Lord Carnwath agree, gives the lead judgment. Lady Hale and Lord Briggs dissent. What constitutes good reason for validating the non compliant service of a claim form is essentially a matter of factual evaluation. The main factors, the weight of which will vary with the circumstances, are likely to be: (i) whether the claimant took reasonable steps to serve in accordance with the rules; (ii) whether the defendant or his solicitor knew of the contents of the claim form when it expired; (iii) what, if any, prejudice the defendant would suffer from validation of the non compliant service [9 10]. It cannot be enough that Mr Bartons email brought the claim form to Berrymans attention. That is likely to be necessary for validation but it is not sufficient. Rules of court must identify a formal step to be treated as informing the defendant of the contents of the claim form. A clear and precise rule is necessary: (i) to determine the exact point from which time limits run for the taking of further steps, or the entry of judgment in default of them, and (ii) because valid service of the claim form may have significant implications for the operation of any relevant limitation period, as in this case. Consequently it has never been enough that the defendant is aware of the contents of the claim form [15 16]. Moreover, particular problems are associated with electronic service. A solicitor must have his clients authority to accept service, which normally in practice covers any mode of service. But a solicitors office must be properly set up to receive and monitor formal electronic communications, which can arrive unnoticed and in the absence of the person primarily responsible for the matter [17]. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step he is about to take. Rule 6.3 and Practice Direction 6A, to which Mr Barton did not in fact refer, are not inaccessible and obscure. They do not justify his assumption that Berrymans would accept service by email unless they said otherwise. Others have made the same mistake as Mr Barton, but not for want of clarity in the rules [18 19]. By June 2013 Mr Barton was an experienced litigant. He knew about limitation. He knew that not all solicitors accepted service by email. Yet he took no steps to check whether Berrymans did so, or to ascertain the rules on service by email [19 20]. A claimant need not necessarily show that compliant service was impossible. It is enough that he has taken such steps as are reasonable. In this case the problem was that Mr Barton made no attempt to serve in accordance with the rules. All that he did was employ a mode of service which he should have appreciated was not in accordance with the rules [21]. The contention that Berrymans, by raising this issue, had been playing technical games does not advance Mr Bartons case: they did nothing before the purported service to suggest that they would not raise it [22]. None of this would have mattered if Mr Barton had allowed himself time to rectify any mishap. But having issued the claim form at the very end of the limitation period, and having made no attempt to serve it until the very end of its period of validity, he can have only a very limited claim on the courts indulgence under rule 6.15(2). By comparison, validation of service would prejudice Wright Hassall by depriving them of an accrued limitation defence [23]. There is no merit in the contention that the outcome in the lower courts is incompatible with Mr Bartons right to a fair trial under article 6 of the European Convention on Human Rights. The relevant rules are sufficiently accessible and clear. They serve a legitimate purpose. The Limitation Act, not those rules, prevented Mr Barton from pressing his claim. A reasonable limitation period does not contravene article 6 [24]. Lord Sumption agrees with Lord Briggs that the Civil Procedure Rule Committee should look at the issues dealt with on this appeal, but the appeal is dismissed [25]. Lord Briggs, with whom Lady Hale agrees, would have allowed the appeal for the following reasons. The most important purpose of service is to ensure that the contents of the claim form are brought to the attention of the person to be served. A second important purpose is to notify the recipient that the claim has been commenced against the defendant, and on a particular day. The provisions in Practice Direction 6A regulating service by email are to ensure that recipients have the opportunity to put in place arrangements for monitoring and dealing with what was then a new mode of service [28 29]. Where all three of those purposes are achieved, that is a good reason for validating service under rule 6.15 provided that there are not sufficient adverse factors against it, which might include a deliberate failure to comply or professional negligence [30]. The power to validate service is not limited to cases where an independent good reason is identified, beyond satisfaction of those underlying purposes [32 35]. Mr Bartons attempted service fully achieved those purposes. That provides good reason for validation unless the circumstances swing the balance against it. Aspects of the circumstances may be said to point both ways. Berrymans loss of its accrued limitation defence does not militate against validation: the acquisition of the defence would have been a windfall. Taking all the relevant considerations into account, Mr Bartons attempt at service by email should be validated [38 43]. |
This appeal concerns the correct approach to written contracts in the employment context where there is a dispute as to the genuineness of a written term. The question arises in the context of a dispute as to whether individuals are workers within the meaning of the National Minimum Wage Regulations 1999 (NMWR) and of the Working Time Regulations 1998 (WTR). The appellant (Autoclenz) provides car cleaning services to motor retailers and auctioneers. The respondents (the claimants) are 20 individual valeters who all worked as car valeters for Auoclenz. All signed similar contractual documents which contained statements to the effect that the claimants were self employed and the claimants were taxed on that basis. In 2007, Autoclenz required the claimants to sign new contracts. The new contract contained a clause which provided: For the avoidance of doubt, as an independent contractor, you are entitled to engage one or more individuals to carry out the valeting on your behalf, provided that such an individual is compliant with Autoclenzs requirements of sub contractors as set out in this agreement. The contract also provided that: You will not be obliged to provide your services on any particular occasion nor, in entering such agreement, does Autoclenz undertake any obligation to engage your services on any particular occasion. The claimants brought a claim in the employment tribunal (ET) seeking a declaration that they were workers as defined under the WTR and the NMWR and consequently entitled to holiday pay and to be paid in accordance with the NMWR. Both sets of regulations define worker in materially identical terms as: an individual who has entered into or works under (a) a contract of employment; or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. As a matter of law no obligations clauses and substitution clauses are inconsistent with contracts of employment or contracts of personal performance It was therefore common ground between the parties that if the terms of the written contract were valid then, as a matter of law, the valeters could not be said to be workers within the meaning of the WTR and the NMWR. The ET held that these contractual terms did not reflect the true agreement between the parties and could be disregarded so that the claimants could be regarded as employed under contracts of employment within limb (a) of the definition. The Employment Appeal Tribunal (EAT) allowed Autoclenzs appeal on the basis that the claimants were not employees under limb (a) but held that they were workers under limb (b) of the definition. It held that on the basis that the ET had applied the incorrect legal test for the identification of sham terms. Both parties had to intend the contractual clause to mislead before it could be said to be a sham and there was insufficient evidence of such an intention. Both sides appealed to the Court of Appeal which restored the judgment of the ET, holding that the claimants were workers within the meaning of (a) and (b). The Supreme Court unanimously dismisses the appeal, holding that the ET had been entitled to find that the claimants were workers because they were working under contracts of employment within the meaning of the NWMR and the WTR. The substantive judgment is given by Lord Clarke, with whom Lord Hope, Lord Walker, Lord Collins and Lord Wilson agree. The ET had been entitled to disregard the terms included in the written agreement between the parties on the basis that the documents did not reflect what was actually agreed between the parties. In the employment context the courts must be alive to the possibility that written documentation may not accurately reflect the reality of the relationship between the parties. Employers may include terms aimed at avoiding a particular statutory result, even where such terms do not reflect the real relationship: [21] [25]. Where one party to an employment contract seeks to challenge the genuineness of the terms there is no need to show an intention to mislead anyone; it is enough that the written term does not represent the intentions or expectations of the parties. The question in every case is what was the true agreement between the parties: [26] [29]. The correct approach to that is enquiry is that set out by the Court of Appeal in this case. The focus must be to discover the actual legal obligations of the parties. To carry out that exercise the tribunal will have to examine all the relevant evidence. That will include the written term itself, read in the context of the whole agreement, as well as evidence of how the parties conducted themselves in practice and what their expectations of each other were: [31] [33]. Nothing in the judgment is intended in any way to alter those principles which apply to ordinary contracts, and in particular, to commercial contracts: [21]. However, the circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. This must be taken into account in deciding whether terms of any written agreement in truth represent what was agreed: [34] [35]. In the present case the ET had been entitled to find that: (1) the valeters would perform the services defined in the contract for Autoclenz within a reasonable time and in a good and workmanlike manner; (2) that the valeters would be paid for that work; (3) that the valeters were obliged to carry out the work offered to them and Autoclenz undertook to offer work; and (4) that the valeters must personally do the work and could not provide a substitute to do so. It follows that the Court of Appeal was entitled to hold that those were the true terms of the contract and that the ET was entitled to disregard the terms of the written documents: [37] [38]. |
This question in this appeal is whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls. They are Hungarian nationals but were born and have been resident in England all their lives. Under article 8(1) of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as Brussels II Revised) the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. The issue is whether the exception to this rule, found in article 15, permitting the transfer of certain proceedings to a court in another member state if it is better placed to hear the case and this would be in the best interests of the child, should apply in this case. The parents of the girls are Hungarian nationals, who moved to England in 2011. The older girl (Janetta) was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl (Ella) in May 2013. Due to the conditions of extreme squalor in which Janetta was found to be living, and the absence of medical attention for Ellas birth, both girls were removed from their parents that day and have been living with foster carers ever since. Care proceedings were issued in January 2014 and the local authority made enquiries regarding the availability and suitability of family members in Hungary to care for the girls. It was in touch with the Hungarian Central Authority (HCA) which proposed the transfer of the girls to Hungary and maintained that only the Hungarian authorities had the right to adopt Hungarian citizen minors. The mother returned to Hungary in 2014 and has since given birth to a third child. She applied for the care proceedings in respect of the girls to be transferred to Hungary pursuant to article 15 of Brussels II Revised. The local authority concluded that there was no viable family placement in Hungary and applied for a placement order for the adoption of the girls, possibly by their foster parents in England, without parental consent. The High Court granted the mothers application (supported by the HCA) to request the transfer of the proceedings under article 15. The Court of Appeal dismissed the appeal brought by the Childrens Guardian and local authority. The Childrens Guardian appeals to the Supreme Court. The issues were the proper approach to the assessment of the childs best interests for the purposes of article 15 and the correctness of the decision to transfer in this case. The Supreme Court unanimously allows the appeal, setting aside the request for a transfer of the proceedings to Hungary and returning the case to the High Court. Lady Hale gives the only judgment. The context in which the question of jurisdiction arises is important. Free movement of workers and their families within the EU has led to many children residing in states of which they are not nationals. Inevitably some of them require protection from ill treatment or neglect, or the risk of it. In every case it is necessary for the court to consider whether the case should be transferred to another state [2]. It is particularly important where the English court might exercise its power to place children for adoption without parental consent, on the basis that the welfare of the child requires this, as this power is unavailable in many other member states [3]. Although the question of the applicability of article 15 to public law care proceedings is currently the subject of a pending reference to the Court of Justice of the European Union in a case from Ireland, the Supreme Court proceeds on the assumption that article 15 is capable of applying and reviews the decisions of the courts below on their merits, rather than making a further reference. The best interests of the girls requires a decision on their future without yet further delay [35, 54]. As for the correct approach to article 15, the language is simple and clear and the court can apply it to the facts of this case without awaiting the outcome of the reference [57]. The principal issue is the nature of the best interests assessment in article 15 and whether it is limited to questions relevant to the choice of forum, as the judge had found. The addition of the best interests test is intended to be an additional safeguard for the child, consistent with the rights of children found in article 24 of the Charter of Fundamental Rights of the European Union [41 42]. While a number of factors will be relevant both to the question of whether a court is better placed to hear the proceedings and of whether transfer is in the best interests of the child, these are separate questions and must be addressed separately. The answer to the second does not inexorably follow from the first [43]. The question is whether the transfer (rather than the eventual outcome) is in the childs best interests but the impact of the transfer on the welfare of the child and on the choices available to the court deciding the eventual outcome must be considered [44]. In the present case, the short term effect of the transfer would be to remove the girls from the home where Ella had lived for virtually her whole life and Janetta for most of hers, where they were happy and settled, to an unfamiliar foster placement in Hungary; and the long term effect would be to rule out one possible option for their future care and upbringing, which was to remain in their present home either through adoption, or a special guardianship order or ordinary residence order. This is not necessarily the outcome which the court should eventually decide, as questions of maintaining links with the girls extended family in Hungary and ethnic background will also be important factors [45 46]. But the judge failed to consider whether the English court could achieve the same outcomes in Hungary as the Hungarian courts, without the need to transfer the case, which would also preserve the options to keep the girls in their present home [48 49]. The English court was also better placed to decide the outcome as it had already heard all the evidence that those involved wished to put before it [50]. These were crucial factors which had been left out of account [51]. The judge had been wrong to apply article 15 to the placement order proceedings but this did not in itself vitiate his decision to transfer the care proceedings. He had the power to stay the placement order proceedings under the wide case management powers of the court and, if it had been right to uphold the transfer, then it would clearly have been right to stay the placement order proceedings [53]. The case is therefore returned to the High Court to determine the future arrangements for the girls, with updated evidence. The full range of outcomes will be open to the court, not simply the stark choice between closed adoption and a foster placement in Hungary, and the judge will apply the extended guidance given by the Court of Appeal in this case [61]. |
The Abortion Act 1967 (as amended) (the Act) sets out the circumstances in which the termination of a pregnancy can lawfully be brought about and requires the termination to take place in a National Health Service Hospital or approved clinic. Section 4(1) establishes a right of conscientious objection: it provides that no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection unless, pursuant to subsection (2), it is necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman. The issue arising in this appeal is the precise scope of this right. The respondents are two experienced midwives employed at the Southern General Hospital in Glasgow as Labour Ward Co ordinators. Both are practising Roman Catholics who have informed their employer of their conscientious objection to taking part in the termination of pregnancy. A small proportion of terminations take place in the Labour Ward rather than the Gynaecology Ward. A midwife will be assigned to give these patients one to one care. The Labour Ward Co ordinator will book in patients, allocate staff in the ward, and supervise and support midwives. The respondents do not wish to undertake these tasks in connection with patients undergoing terminations. They were dissatisfied with the arrangements made to accommodate their objections and raised a grievance with their employer. The hospital took the view that delegation, supervision and support did not constitute participating in the treatment and rejected the grievance. The respondents brought proceedings for judicial review challenging the decision letters received as a result of the grievance procedure. They were unsuccessful before the Lord Ordinary but succeeded before an Extra Division of the Inner House, which granted a declarator that the scope of s 4(1) included the entitlement to refuse to delegate, supervise and/or support staff in the provision of care to patients undergoing terminations save as required by s 4(2). This was a wide interpretation of the right, which was said to extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. The respondents employers appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and sets aside the declarator made in the Inner House. Lady Hale gives the only substantive judgment, with which the other justices agree. The only question in this case is one of pure statutory construction: the meaning of the words to participate in any treatment authorised by this Act to which he has a conscientious objection. It was common ground that any treatment authorised by this Act meant the process of treatment in hospital for the termination of pregnancy and that participating meant actually taking part in that process, rather than the extended meaning given to participation by the criminal law [11]. Questions of whether the respondents rights to respect for their religious beliefs protected by Article 9 of the European Convention on Human Rights have been unlawfully restricted, or whether their employers have a duty to make reasonable adjustments to the requirements of their job to take account of their religious beliefs do not fall to be decided in this case, but are better suited to resolution in the proceedings which the respondents have also brought in the employment tribunal [23 24]. Nor does the Supreme Court have the evidence from which the impact on a safe and accessible abortion service of a wide or narrow interpretation of section 4(1) could be assessed [25 27]. The course of treatment to which conscientious objection is permitted by s 4(1) is the whole course of medical treatment bringing about the termination of the pregnancy. It begins with the administration of the drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It also includes the medical and nursing care which is connected with the process of undergoing labour and giving birth the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient, the delivery of the foetus, the disposal of the foetus, placenta and membrane and any specific aftercare required as a result of the process of giving birth. But the ordinary nursing and pastoral care of a patient who has just given birth was not unlawful before the Abortion Act 1967 and thus not made lawful by it [34]. A narrow meaning of the words to participate in is more likely to have been in the contemplation of Parliament when the Act was passed, rather than the host of ancillary, administrative and managerial tasks associated with the acts being made lawful. Participate means taking part in a hands on capacity: actually performing the tasks involved in the course of treatment [37 38]. Paragraph 39 sets out the list of tasks carried out by Labour Ward Co ordinators like the respondents and indicates which specific elements will be within the scope of s 4(1). These include providing advice requested by a midwife connected with the care of a particular patient undergoing a termination (as opposed to ordinary monitoring of all patients); accompanying the obstetrician on ward visits to those patients; providing part of the treatment in response to requests for assistance from the patient or from the midwife caring for her (but not responding by itself to such requests and making a referral if necessary); providing break relief personally for those midwifes; being present if medical intervention is required in connection with the treatment; and forming judgments about the progress of these patients personally. A necessary corollary of the duty of care owed to patients by members of the health care profession is that any conscientious objector is under an obligation to refer the case to a professional who does not share the objection [40]. |
This case concerns a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the 2009 Regulations) that unmarried co habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor's pension. The survivor must also show that he or she has been a cohabitant for two years before the date on which the member sent the nomination and has been in that position for two years before the date of death. There is no similar nomination requirement for married or civil partner survivors. The Department of the Environment of Northern Ireland (DENI) included a nomination requirement in the 2009 Regulations in order to ensure parity with other local government pension schemes in Scotland and England and Wales, which at the time had similar requirements. The appellant, Denise Brewster, lived with her partner, William Leonard McMullan, for around ten years before December 2009. On Christmas Eve that year, they became engaged. Mr McMullan died two days later. At the time of his death, Mr McMullan was employed by Translink, a public transport operator, for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the Local Government Pension Scheme (the scheme). Ms Brewster believes that Mr McMullan had completed a form in which he nominated her to be eligible for a survivors pension, but the Northern Ireland Local Government Officers Superannuation Committee (NILGOSC), which administers the scheme, says it did not receive any form. Accordingly, NILGOSC refused to pay her a survivors pension. Ms Brewster applied for a judicial review of this decision. The High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with article 1 protocol 1 (peaceful enjoyment of possessions) (A1P1). The Court of Appeal allowed the respondents appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied to the Court of Appeal for her appeal to be re opened. Her application was refused and she now appeals to the Supreme Court. The Supreme Court unanimously allows Ms Brewsters appeal and declares that the requirement in the 2009 Regulations that the appellant and Mr McMullan should have made a nomination be disapplied; and that the appellant is entitled to receive a survivors pension under the scheme. Lord Kerr gives the judgment, with which the other Justices agree. The parties are agreed that a survivors pension, as a possession, falls within the ambit of A1P1 and that the appellant, as a surviving unmarried cohabiting partner, enjoys a relevant status for the purpose of article 14 and is in an analogous situation to a surviving married partner or civil partner [44 47]. The only issue, therefore, is whether the interference with the appellants right to property has been objectively justified. The starting point in assessing justification must be the duty of the state under article 14 to secure the appellants right to equal treatment. The duty to secure rights calls for a more proactive role than the requirement to respect rights. The question of justification must be assessed objectively, but the court should not substitute its view for that of the decision maker, particularly in matters of socio economic policy [49]. According to DENI, the objective behind the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership and identify the wishes of the scheme member [29]. The 2009 Regulations, however, already require a surviving partner to establish that a genuine and subsisting relationship existed, so the nomination requirement adds nothing to this evidential hurdle. The confirmation of the members wishes has no intrinsic value [31]. Although the status of cohabitation is not an immutable characteristic but a matter of choice, this was not a factor that was considered by the decision maker [59]. The desirability of establishing a bright line rule is also of marginal significance in this case, as no thought was given to the possible difficulties with administration that might arise if the nomination procedure was not included and no evidence was produced that it would cause significant problems in administering the scheme, particularly as in England and Wales it is considered that the nomination procedure is not necessary [62]. Given DENIs acceptance that the provision of a survivor benefit engages A1P1 and that the appellant has the requisite status to rely on article 14, the objective behind the nomination requirement must have been to eliminate unwarranted differences of treatment between married or civil partner survivors on the one hand and unmarried long term partners in a stable relationship on the other [34]. When it comes to general measures of economic or social strategy, the court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation [53 55]. Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished [64]. A matter is not immune from review purely on account of coming within the realm of social or economic policy it must be shown that a real policy choice was at stake. In the present case, not only were socio economic factors not at the forefront of the decision making process, but the attempt to justify retention of the procedure was characterised by general claims, unsupported by concrete evidence and disassociated from the particular circumstances of the appellants case [65]. There is no rational connection between the objective, which was to remove the difference of treatment between a longstanding cohabitant and a married or civil partner, and the imposition of the nomination requirement and therefore its discriminatory effect cannot be justified [67]. |
In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c) read with Article 6(1) of the European Convention on Human Rights. The question in this case is whether the Salduz principle extends to the use of any evidence whatever, the existence of which was discovered as a result of answers given by the accused while in custody without access to legal advice; or whether evidence which, although derived from those answers, has an independent life of its own and does not require to be linked to those answers in order to support the Crowns case will normally be admissible. The accused has been indicted at the High Court of Justiciary on a charge of assault and rape. He was detained under section 14 of the Criminal Procedure (Scotland) Act 1995, and was taken to a police station and interviewed. He was not given access to legal advice prior to or during the interview. He was asked where he had been on the date of the alleged rape, and replied that, prior to the alleged incident, he had taken a powdered substance at another pub that had provoked an adverse reaction. He stated that his best friend could back up his statement. The police subsequently took a statement from the friend, who confirmed what the accused had said about his reaction to the drug. But he also described having a telephone conversation with the accused the next morning, when the accused described meeting a woman the previous night and having consensual sex with her. The accused submitted that his rights under Article 6(3) would be contravened if the Crown were permitted to elicit evidence of his police interview, that the evidence of his friend about the telephone conversation was incriminatory evidence which had been obtained as a direct result of his replies during the police interview, and that the Crown should not be permitted to lead this evidence. When this point came before the trial judge for debate the Lord Advocate asked him to refer the issue to this Court. The questions referred by the trial judge are: 1. Whether the act of the Lord Advocate in leading and relying on evidence obtained from information disclosed during the course of a police interview with an accused person without the accused person having had access to legal advice would be incompatible with that persons rights under Article 6(1) and (3)(c) of the Convention, having regard in particular to the decision in Cadder; and 2. Whether the act of the Lord Advocate in leading and relying on the evidence of the friend in these proceedings would be incompatible with the accuseds rights under those Articles. The Supreme Court unanimously allows the appeal. It answers question 1 in the negative, and declines to answer question 2, leaving it to the trial judge to decide whether, if the Crown were to lead and rely on the friends evidence about the telephone conversation, the accused would, in all the circumstances, be deprived of his fundamental right to a fair trial. Lord Hope gives the main judgment, with which Lords Dyson, Kerr and Clarke agree. Lord Brown gives a short concurring judgment. The Salduz principle is not restricted to admissions made without access to legal advice during police questioning (Gafgen v Germany (2010) 52 EHRR 1). The question is whether the rule extends to evidence derived from a detainees answers but which can speak for itself, without it being necessary to refer for support or explanation to anything the detainee said in his police interview [9]. In this case, the statement allegedly made by the accused to his friend in the telephone call was at least partly incriminatory, in relation to the fact of sexual intercourse taking place at the locus. But this of itself does not make it inadmissible. The assumption is that the police would not have obtained this evidence but for what the accused told the police when he was arrested. If that is the case, the question is whether the fact that the source of the friends information was the accused himself renders the friends evidence inadmissible [15]. The guiding principle in Scots law is Lawrie v Muir 1950 JC 19, which states that an irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible in a criminal prosecution [17]. The law of England and Wales is to the same effect (Section 76(4) of the Police and Criminal Evidence Act 1984l. Ultimately the question is whether it would be fair to admit the evidence [18]. In Gafgen, the ECtHR noted that there is no clear consensus about the exact scope of application of the exclusionary rule. In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence [22]. Where the boundary lies between what the Convention requires to be automatically excluded because it is derived from what the person has said and what is not remains unclear [23], and there have been no other cases dealing with the issue since Gafgen. Strasbourg has not, however, suggested that leading evidence of the fruits of questioning that is inadmissible because the accused did not have access to a lawyer when he was being interviewed will always and automatically violate the accuseds rights under Article 6(1) and (3)(c). Regard can be had to the position in England and Wales, where, subject to the courts discretionary power to exclude it under section 78(1), evidence derived from an involuntary statement which can be adduced without having to rely on that statement is admissible [24]. Assistance may also be found in the Canadian Supreme Court case of Thomson Newspapers Ltd v Canada (Director of Investigation and Research) [1990] 1 SCR 425, where attention was drawn to the distinction between evidence that simply would not have existed independently of the exercise of the power to compel it; and evidence derived from compelled testimony which is, by definition, evidence that existed independently of the compelled testimony [25]. This supports the conclusion to be drawn from what Strasbourg has said so far on this issue: that there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under Article 6(1) and (3)(c). It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. It is another if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence in question. The question whether such evidence should be admitted has to be tested by considering whether the accuseds right to a fair trial would be violated by the leading of the evidence [27]. |
This judgment is one of a number given by the Supreme Court today on issues arising from alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. Mr Belhaj and his wife were detained in Kuala Lumpur in 2004. The respondents allege that MI6 informed the Libyan authorities of their whereabouts, leading to them being rendered to Libya against their will. They allege that they were unlawfully detained by Malaysian officials in Kuala Lumpur, Thai officials and US agents in Bangkok, and finally in Libya. They allege that the United Kingdom arranged, assisted and encouraged their rendition, as well as conspired in and assisted torture, inhumane and degrading treatment inflicted on them by the US and Libyan authorities. Mr Rahmatullah was detained by British forces in Iraq on 28 February 2004 on suspicion of being a member of the proscribed organisation Lashkar e Taiba. Within a few days he was transferred into US custody. By the end of March 2004 the US authorities had transferred him to Bagram Airbase in Afghanistan, where he was detained by such authorities without charge for over ten years. Part of his claim is that, in relation to this ten year period, British officials acted in combination with the US authorities and/or assisted or encouraged his unlawful detention and mistreatment by the US authorities. Rahmatullah is said to be representative of other claims currently before the High Court. The issues before the Court are whether, assuming for present purposes that the allegations made are true, the claims of UK complicity for unlawful detention and mistreatment overseas at the hands of foreign state officials are properly triable in the English courts. The appellants rely on the doctrines of state immunity and/or foreign act of state. In Belhaj the High Court held that there was no state immunity but that the claims were barred being based on foreign acts of state. The Court of Appeal affirmed the decision on state immunity but held the doctrine of foreign act of state to be: (i) limited to acts occurring within the jurisdiction of the relevant foreign state; and (ii) subject to a public policy exception for grave human rights violations. In Rahmatullah, the High Court held that neither doctrine applied. Both cases come before the Court on appeal, in the case of Rahmatullah by leapfrog order. The Supreme Court unanimously dismisses the Governments appeals. Lord Mance gives the lead judgment. Lord Neuberger gives a concurring judgment, with which Lord Wilson, Lady Hale and Lord Clarke agree. Lord Sumption adds a further concurring judgment, with which Lord Hughes agrees. State immunity is based on the sovereign equality of states and international comity [12]. The appellants submit that state immunity covers (under the concept of indirect impleading) cases where it is integral to a claim against United Kingdom authorities to prove that foreign officials acted contrary to their own laws. They rely on the concepts of interests or activities in Article 6(2)(b) of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property [25]. However, the Court concludes that none of those concepts covers reputational disadvantage that could be suffered by foreign states [29, 195]. The relevant foreign states will not be affected in any legal sense by proceedings to which they are not party. The pleas of state immunity fail accordingly [31, 197]. Lord Mance identifies three types of foreign act of state rule recognised in current English authority, broadly also reflected in the judgment of Lord Neuberger. The first is a rule of private international law, whereby a foreign states legislation will normally be recognised and treated as valid, so far as it affects movable or immovable property within that states jurisdiction [35, 135]. The second rule (taking, without necessarily endorsing current Court of Appeal authority) goes no further than to preclude a domestic court from questioning the validity of a foreign states sovereign act in respect of property within its jurisdiction, at least in times of civil disorder [38, 74 78]. Even if this rule were, however, viewed as extending more generally to acts directed against the person, it would be subject to a public policy exception which would permit the allegations of complicity in torture, unlawful detention and enforced rendition in this case to be pursued in the English courts [80, 156]. Thirdly, a domestic court will treat as non justiciable or will refrain from adjudicating on or questioning certain categories of sovereign act by a foreign state abroad, even if outside the jurisdiction of that state [40, 123]. Whether an issue is non justiciable under the third rule falls to be considered on a case by case basis, having regard to the separation of powers and the sovereign nature of activities [90 95]. English law will take into account whether issues of fundamental rights are engaged, including liberty, access to justice and freedom from torture [98, 101]. The international relations consequences of a court adjudicating on an issue may also feed into the assessment under the third rule [41]. In this case, the circumstances do not lead to a conclusion that the issues are non justiciable [96 105, 167 8]. Lord Neuberger underlines the limits of the foreign act of state doctrine. A public policy exception qualifies the first and (so far as it exists) second rules; and, if necessary, also the third rule [157]. Lord Sumption identifies in the case law two relevant principles: municipal law act of state corresponding generally with the first two rules of Lord Mances framework [228], and international law act of state corresponding generally with Lord Mances third rule. Municipal act of state is confined to acts done within the territory of the relevant foreign state [229]. International law act of state requires the English courts not to adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states, since these occur on the plane of international law [234]. But the doctrine does not apply simply because the subject matter may incidentally disclose that a state has acted unlawfully and it is subject to a further public policy exception, potentially applicable in cases of violations of jus cogens under international law (fundamental norms from which no derogation is permitted) and of fundamental human rights [248]. It is unnecessary to decide whether: a) the UN Convention against Torture requires any modification of the doctrine of foreign act of state to give a universal civil remedy for torture [11(v)(a), 108]; b) article 6 of the European Convention on Human Rights precludes reliance on state immunity or foreign act of state; or to say more than that the appellants would face difficulties on each point [11(v)(b), 281 4]. In the result, state immunity is no bar to the claims, and the appellants have not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state to defeat the present proceedings. The appeals are dismissed and the cases may proceed to trial. |
In 2003 the appellant, Mr Macklin, was convicted of possession of a handgun in contravention of section 17 of the Firearms Act 1968, and a further charge of assaulting two police officers by repeatedly pointing the handgun at them. The issue in dispute at his trial was whether he was the person who had been pursued by the officers and who had pointed the gun at them. He was identified at trial by both officers. One of them had recognised the appellant at the time of the incident, and the other had identified him from a selection of photographs shortly afterwards. Their evidence was challenged in cross examination. The judge warned the jury about the risk that visual identification evidence might be unreliable, but gave no specific directions concerning the risks associated with the identification of an accused person in court. Some years later the Crown disclosed material which had not been disclosed at the trial, including statements given to the police by witnesses. One witness gave a description inconsistent with the appellants appearance. Two witnesses failed to identify the appellant when shown his photograph. It was also disclosed that the police had found fingerprints belonging to someone else in the car, and that that person had a criminal record. In 2012 the appellant was granted leave to appeal against his conviction, on the basis of (i) the Crowns failure to disclose material evidence; (ii) the Crowns leading and relying on dock identifications by the police officers, without having disclosed material evidence and without the officers having participated in an identification parade; and (iii) a contention that the judge had misdirected the jury in failing to warn them of the dangers of dock identification evidence. The appellant argued that, with respect to the first two matters, the Lord Advocate had acted in a manner incompatible with article 6(1) of the European Convention on Human Rights. The appellants appeal was refused by the High Court of Justiciary. He was subsequently granted permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses Mr Macklins appeal. Lord Reed gives the leading judgment. Lord Gill gives a concurring judgment. The other justices agree with both judgments. Lord Reed explains that the jurisdiction of the Supreme Court under section 288AA of the Criminal Procedure (Scotland) Act 1995 is not to sit as a criminal appeal court exercising a general power of review, but to determine compatibility issues, which are questions as to whether a public authority has acted unlawfully under section 6(1) of the Human Rights Act 1998 or has acted incompatibly with EU law, or whether a provision of an Act of the Scottish Parliament is incompatible with Convention rights or EU law [5 7]. As a consequence of section 34 of the Scotland Act 2012, which introduced compatibility issues into the 1995 Act by inserting a new section 288ZA, and the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013, the first two grounds raised by the appellant were converted from being devolution issues to compatibility issues. However the third ground, which concerns the directions given by the trial judge, did not give rise to a devolution issue which could be converted into a compatibility issue [10]. The question of whether a failure of disclosure has resulted in a breach of article 6(1) ECHR has to be considered in the light of the proceedings a whole, including the decisions of appellate courts. This involves consideration firstly of whether the prosecution failed to disclose all material evidence, in circumstances in which such a failure would result in a violation of article 6(1), and secondly whether the defect in the trial procedures was remedied by the procedure before the appellate court [13]. As held in McInnes v HM Advocate [2010] UKSC 7, on the question of whether withheld material should have been disclosed, the test is whether the material might have materially weakened the Crowns case or materially strengthened the defences case. Where this is satisfied, the test concerning the consequences of the non disclosure is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict [14]. The Crown conceded before the High Court of Justiciary that the statement of the witness who had given a description inconsistent with the appellants appearance, and the statements given by the witnesses who failed to identify the appellant when shown his photograph, should have been disclosed. The High Court applied the first test in McInnes to the remaining withheld evidence and explained its reasons for concluding that the material did not require to be disclosed. In relation to the material which should have been disclosed, the High Court then applied the second test in McInnes and explained its reasons for concluding that there was no real possibility that the jury would have arrived at a different verdict [15 16]. The High Court also considered whether the Crowns leading of the identification evidence from the police officers had resulted in the Lord Advocates acting incompatibly with article 6(1) and concluded that it had not [17]. The fact that under current Crown practice, the withheld material would have been disclosed does not lead to the conclusion that the non disclosure breaches article 6(1); it is the first of the McInnes tests which must be applied [18]. In determining a compatibility issue, applying Lord Hopes dicta in McInnes, the Supreme Court can decide whether the High Court has adopted the correct test, but not whether it then applied that test correctly to the facts [20]. It was conceded that the Supreme Court might have jurisdiction to intervene if the High Court merely purported to apply the McInnes test but did not actually apply it. But this does not permit examination of whether the test was correctly applied to the facts. This principle gives effect to the finality accorded to the High Courts decisions. It should not be undermined by permitting dressed up challenges to the application of the correct test [22]. In the present case it is clear from the reasoning of the High Court that it identified the correct test and also applied it to the circumstances of the case. Comparison with Holland v HM Advocate [2005] UKPC D 1 does not assist, as the Judicial Committee of the Privy Council was performing a different exercise and its decision reflected the particular circumstances of that appeal [23]. Mr Macklins appeal should therefore be dismissed [24]. Lord Gill gives a concurring judgment, finding that the High Court identified and applied the correct test, and that its conclusions on the significance of the non disclosure in relation to the verdict do not fall within this Courts jurisdiction [25 49]. |
Virgin obtained judgment from the English Court of Appeal (the CA) against Zodiac for damages to be assessed for the infringement of certain claims (the relevant claims) in a European Patent. The CA found their patent to have been valid and infringed by Zodiac. Subsequently, the Technical Board of Appeal (the TBA) of the European Patent Office (the EPO) ruled that that the relevant claims were invalid because they had been anticipated in prior art, and retrospectively amended the patent so as to remove, with effect from the date of grant, all the relevant claims. Virgin submitted that it was nevertheless entitled to recover damages for infringement because the CAs conclusions that the patent (including the relevant claims) was valid and that the relevant claims were infringed by Zodiac were res judicata as between it and Zodiac on the subsequent assessment of damages, and that it was not open to Zodiac to reply on the TBAs amendment to the patent, as this would be inconsistent with the orders made by the CA. That argument had succeeded before the CA in similar circumstances in previous cases, and the CA had followed those decisions in the present case. Zodiacs case is that the unamended patent has been retrospectively amended, and that the relevant claims therefore no longer exist, and are deemed never to have existed. It submits that no issue of res judicata arises because that was not the situation considered by the CA. The Supreme Court unanimously allows the appeal and declares that Zodiac are entitled to rely on the amendment of patent in answer to Virgins claim for damages on the enquiry. Lord Sumption gives the lead judgment, Lord Neuberger gives a concurring judgment, and the other members of the Court agree with both judgments. After a review of the law of res judicata [17 26], the Court gives two related reasons why Zodiac cannot be precluded from relying on the decision of the TBA on the enquiry as to damages. One is that it is relying on the more limited terms of a different patent which, by virtue of the TBAs decision, must at the time of the enquiry be treated as the one that existed at the relevant time, whereas the unamended patent, relied on by Virgin, must be treated as if it had never existed. The second reason is that Zodiac is not seeking to reopen the validity of the relevant claims, which was one of the questions determined by the CA. The invalidity of those claims may be the reason the TBA amended the patent, but Zodiac is relying on the mere fact of amendment, not the reasons why it happened [27, 53, 54]. The CA reached a different conclusion because it followed a line of cases holding that a patentee, whose patent (in proceedings against a particular defendant) is found to be valid and infringed, is entitled to claim damages from the defendant for the infringement without regard to a subsequent revocation of the patent, even though as a matter of English law the revocation of a patent for invalidity relates back to the date of grant [28, 48]. The Court holds that this line of cases was wrongly decided. Their major fallacy is the assumption that cause of action estoppel was absolute generally rather than absolute only as regards points actually determined by the earlier decision. Accordingly, the decisions in those cases had no regard to the fact that the consequences of the patents subsequent revocation had not been, and could not have been, determined, or even taken into account, in the earlier decision, because it had not happened by the time of that decision. They were also wrong to suppose that, by taking into account the subsequent revocation, a court would be rehearing the question of validity decided by the judgment on liability. The revocation was a decision in rem determining the status of the patent as against the world [32, 48]. It had been revoked by the authority which had granted it and it must be treated as never having existed. The issue raised on the enquiry was not invalidity but revocation [32]. Accordingly, where judgment is given in an English court that a patent (whether English or European) is valid and infringed, and that patent is subsequently revoked or amended (whether in England or at the EPO), the defendant is entitled to rely on the revocation or amendment on the enquiry as to damages [35]. The Supreme Court also proposed that the current procedural guidelines laid down by the CA, which propose that the English court should normally refuse to stay its own proceedings if it would be likely to resolve the question of validity significantly earlier than the EPO, should be re examined [38, 69]. |
This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for hearing loss suffered by employees prior to 1 January 1990. The central issue is whether liability existed at common law in negligence and/or under s.29(1) of the Factories Act 1961 towards an employee who suffered noise induced hearing loss due to exposure to noise levels between 85 and 90dB(A)lepd. Mrs Baker, the Respondent, worked in a factory in Sutton in Ashfield, Nottinghamshire, from 1971 until 2001. From 1971 to 1989 she was exposed to noise which was found at trial to have been between 85 and 90dB(A)lepd and which had led to her sustaining a degree of noise induced hearing loss. The measure db(A)lepd indicates exposure at a given sound level over a period of eight hours. Mrs Baker brought a claim against her employers, for whom liability now rests with Quantum Clothing Group Ltd, one of the Appellants. A number of other individuals brought similar claims against Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd, and all the claims were decided together as test cases. Only Mrs Baker was found to have suffered hearing loss due to noise exposure in her employment and the other claims were therefore dismissed. Mrs Bakers claim was dismissed on the different basis that her employers had not committed any breach of common law or statutory duty. The Court of Appeal allowed an appeal by Mrs Baker and reached conclusions less favourable to all four employers than those arrived at by the judge at first instance. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have had greater than average knowledge and were liable at common law from late 1983. S.29(1) of the Factories Act 1961 provides that, every place at which any person has at any time to work shall, so far as is reasonably practicable, be made and kept safe for any person working there. The Court held that the section imposes a more stringent liability than at common law and in particular that what was safe was to be judged irrespective of whatever was regarded as an acceptable risk at the time. On this basis the Court held that the date from which liability arose under the section was January 1978. The present appeal has been brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening. The Supreme Court allows the appeal by a majority of 3:2 and restores the judges decision at first instance. Lord Mance gives the lead judgment. Lord Dyson gives an additional concurring judgment, and Lord Saville agrees with both. Lord Kerr and Lord Clarke give dissenting judgments. The Supreme Court first dealt with common law liability in negligence. The central question was whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The judge at first instance had found that it did until the terms of a draft European Directive of 1986, which proposed a lower limit, came to be generally known in 1988 via a consultative document. The Court upheld that conclusion of the judge. Examination of the underlying statistical material did not undermine the relevance of the Code as a guide to acceptable practice. It was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s. The Court also endorsed a further two year period beyond 1988 allowed by the judge for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990. The Court of Appeal had been incorrect to replace that period with a period of six to nine months. On the facts, Quantum and Guy Warwick were in the position of average employers to whom the 1 January 1990 date applied. Courtaulds and Pretty Polly, however, were in a special position. By the beginning of 1983 they had an understanding of the risk that some workers would suffer damage from exposure to between 85 and 90dB(A)lepd, which distinguished their position from that of the average employer. Allowing a further two years to implement protective measures, they were potentially liable at common law from the beginning of 1985. The Court then dealt with liability under s.29(1) of the 1961 Act. In construing the section, the Court first held that a workplace may be unsafe within the meaning of the section not only due to its physical fabric, but also due to activities carried on in it. The next question was whether the section applies to risks created by noise. The Court held that it did, on the basis that the section could accommodate attitudes to safety that were not held at the time when it was enacted. Thirdly, the Court held that what is safe is a relative concept that must be judged having regard to general knowledge and standards at the time of the alleged breach of duty. Finally, the Court held that the qualification, so far as is reasonably practicable, also allows such general knowledge and standards to be taken into account. Applying that construction, the section did not impose in this respect a more stringent liability than at common law. The employers by complying with the Code of Practice were not in breach of the statutory duty before like dates as those from which they were potentially liable at common law. Lord Kerr and Lord Clarke dissented. They held that the terms of the Code of Practice and other material available by 1976 were such that employers should have been aware that damage to hearing could occur at levels below 90dB(A)lepd and that certain individuals in the workforce would be particularly vulnerable at those levels. Further, the employers should have been aware that they could have reduced that risk at not inordinate cost by the provision of ear protection. Liability therefore arose at common law from the late 1970s onwards. As to liability under s.29(1), the concept of safety, unlike the qualification of reasonable practicability, does not include an assessment of what was foreseeable at the time. On the facts, the workplaces were not safe and it was reasonably practicable to provide ear protection. The dissenting Justices therefore held that employers were liable under the section from 1978 as held by the Court of Appeal. |
Subsets and Splits