15 October 2018

Background

The proceedings related to a jurisdictional dispute between the applicant wife and the respondent husband as to whether their divorce should take place in England or in France. That issue had been transferred to the Court of Appeal (Civil Division) from the High Court. 

In the meantime, the wife had sought and been granted various financial orders. In November 2017, the husband was ordered to pay maintenance, pending suit and costs. He paid the maintenance up to April 2018, but did not pay the costs. The wife then applied for an increase in maintenance and for a legal services payments order under Matrimonial Causes Act 1973 s 22ZA. On 25 June 2018, the district judge increased the wife’s maintenance and made a legal services payments order. The husband made no payment under the June order. 

As a result of the husband’s non-payment, the wife applied for a Hadkinson order preventing him from pursuing an appeal in relation to the divorce proceedings. The wife argued that her husband was in contempt of court by having failed to comply with orders for maintenance pending suit, costs and a legal services payment order. On 6 September, the judge ordered that the husband, if he opposed the application, file submissions in response and attend the hearing. Although that order was duly served on the husband, he neither responded, nor attended the hearing.

Application allowed.

Issues and decisions

Whether the wife’s application for a Hadkinson order should be granted.

Applying established law, the present was a plain case in which all the essential criteria for a Hadkinson order were met. The husband was in contempt, he was in breach of both orders. His contempt was deliberate and continuing; he had simply and silently disengaged in the midst of his own appeal. There was an impediment to the course of justice; compliance with the legal services payment order was essential to enable the wife to participate fairly in the husband’s appeal (if indeed he sought to pursue it). There was no other realistic remedy; the process of enforcement against the husband’s likely available assets could not remotely take place within the appeal timescale. Nothing less than the order sought had any chance of being effective (see [9]-[15], [16] of the judgment).

The order sought by the wife went further than necessary, but only to a marginal extent. There was a difference between the unpaid costs and maintenance on the one hand and the unpaid legal services payments on the other. Non-payment of the outstanding maintenance and costs was not an insuperable impediment to the course of justice: non-payment of the legal services payment order was (see [17] of the judgment). 

Accordingly, the wife’s application would be granted in principle, on condition that the husband be permitted to pursue his appeal on payment of the sums outstanding under the legal services payment order together with the wife’s costs of the present application (see [18] of the judgment). 

Hadkinson v Hadkinson [1952] 2 All ER 567 applied; Mubarak v Mubarik [2006] All ER (D) 405 (May) applied; Laing v Laing [2005] EWHC 3152 (Fam) considered; C v C (Appeal: Hadkinson Order) [2010] EWHC 1656 (Fam) considered; Assoun v Assoun (No 1) [2017] All ER (D) 193 (Mar) considered.

Peter Newman for the wife.

The husband did not appear.

Paul Mclachlan - Barrister.

The respondent husband’s non-payment of a legal services payment order arising from divorce proceedings, was an insuperable impediment to the course of justice. Accordingly, the Court of Appeal, Civil Division, allowed the wife’s application for a Hadkinson order preventing the husband from pursuing an appeal in relation to the divorce proceedings. That order was subject to a condition that the husband be permitted to pursue his appeal, on payment of the sums outstanding under the legal services payment order, together with the wife’s costs of the current application.

 

Background

The respondent (L) was a gay man who volunteered with QueerSpace, an organisation for the LGBT community in Belfast. QueerSpace supported the campaign in Northern Ireland to enable same sex couples to get married. L was invited to attend a private event organised by QueerSpace to mark the end of Northern Ireland anti-homophobia week and the political momentum towards same-sex marriage. He decided to take a cake to the party and placed an order with the first appellant company’s bakery shop (Ashers) in Belfast, requesting for a cake to be iced with his design, the QueerSpace logo and the headline ‘Support Gay Marriage’. 

Ashers was a bakery business which had been run since 1992 by the parents of the current general manager (the family). The family were Christians and held religious beliefs that gay marriage was inconsistent with Biblical teaching and therefore unacceptable to God. L did not know anything about the family’s beliefs about marriage and neither they nor their staff knew of his sexual orientation. Although Ashers took the order and raised no objection at the time, it subsequently informed L that the order could not be fulfilled because it was a Christian business and could not print the slogan requested. Ashers apologised to L, he was later given a full refund and the image was returned to him.

The district judge in the County Court held that refusing to complete the order was direct discrimination on grounds of sexual orientation, religious belief or political opinion. She found that Ashers ‘cancelled this order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs’.  She further held that the relevant legislation in Northern Ireland (both the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, SI 2006/439 (SORs) and the Fair Employment and Treatment (Northern Ireland) Order 1998, SI 1998/3162 (NI 21) (FETO)) was compatible with the rights under the European Convention on Human Rights. She made a declaration to that effect and awarded L damages in the agreed sum of £500. The defendants appealed by way of case stated to the Court of Appeal, Northern Ireland. The Court of Appeal served a devolution notice and a notice of incompatibility upon the Attorney General, who then became a party to the proceedings. The Court of Appeal handed down judgment dismissing the appeal. It held that the case was one of associative direct discrimination on grounds of sexual orientation and that it was not necessary to read down the SORs to take account of the family’s Convention rights. The court did not therefore decide, although it did discuss, the questions arising under political and religious discrimination. On 28 October 2016, the Attorney General gave notice to the Court of Appeal requiring it to make a reference to the UK Supreme Court. The Court of Appeal, in its separate judgment dealing with an appeal to the Supreme Court, concluded that he had no power to do so because the proceedings had ended. The principal judgment was sealed and filed on 31 October in the form of an order. 

The appellants subsequently applied to the Supreme Court for permission to appeal against the order of the Court of Appeal dismissing their appeal from the County Court. In that context, the appellants submitted that it had not been open to the district judge to find that there had been direct discrimination on grounds of sexual orientation. The Attorney General also made a reference raising the issues relating to the power to make the SORs and the validity of the FETO. The Attorney General further made a reference raising the issue of whether he had been entitled to require the Court of Appeal to make a reference to the Supreme Court on 28 October 2016. 

Issues and decisions 

(1) Whether the Court of Appeal had erred in its finding that there had been direct discrimination on grounds of sexual orientation. 

There had been no discrimination on grounds of sexual orientation in the present case. The reason for treating L less favourably than other would-be customers had not been his sexual orientation but the message he had wanted to be iced on the cake. Anyone who had wanted that message would have been treated in the same way. The Court of Appeal had held that ‘this was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community’. That suggested that the reason for refusing to supply the cake had been that L had been likely to associate with the gay community of which the family had disapproved. However, there had been no evidence that Ashers had discriminated on that or any other prohibited ground in the past. The evidence had been that Ashers had both employed and served gay people and had treated them in a non-discriminatory way. Nor had there been any finding that the reason for refusing to supply the cake had been that L had been thought to associate with gay people. The reason had been their religious objection to gay marriage (see [23], [28], [35] of the judgment). 

Ladele v London Borough of Islington [2010] IRLR 211 approved; James v Eastleigh Borough Council [1990] 2 All ER 607 considered; Coleman v Attridge Law: C-303/06 [2008] IRLR 722 considered; English v Thomas Sanderson Blinds Ltd [2009] IRLR 206 considered; Preddy v Bull (Liberty intervening); Hall v same [2014] 1 All ER 919 considered.

(2) Whether Ashers had discriminated against L on the grounds of his political opinions.

For reasons of policy, principle and language, the less favourable treatment prohibited by FETO had to be on the grounds of religious belief or political opinion of someone other than the person meting out that treatment. To the extent that the district judge had held that the bakery had discriminated unlawfully because of its owners’ religious beliefs she had been wrong to do so. On the basis that L had been perceived as holding the opinion in question, it became appropriate to consider the impact of the family’s Convention rights upon the meaning and effect of FETO (see [45], [48] of the judgment).

The Convention rights to freedom of thought, conscience and religion and freedom of expression, as set out in art 9(1) of the Convention were clearly engaged. Article 9(2) permitted limitations on the freedom to manifest one’s religion or beliefs but not on the freedom to hold them. Further, obliging a person to manifest a belief which he did not hold had been held to be a limitation on his rights under art 9(1) of the Convention. The freedom not to be obliged to hold or to manifest beliefs that one did not hold was also protected by the right to freedom of expression as set out in art 10 of the Convention (see [49], [50], [52] of the judgment). 

Articles 9 and 10 were, of course, qualified rights which could be limited or restricted in accordance with the law and insofar as that was necessary in a democratic society in pursuit of a legitimate aim. It was, of course, the case that businesses offering services to the public were not entitled to discriminate on certain grounds. Ashers could not refuse to provide a cake - or any other of their products - to L because he was a gay man or because he supported gay marriage. However, that important fact did not amount to a justification for something completely different - obliging it to supply a cake iced with a message with which it profoundly disagreed. It would be entitled to refuse to do that whatever the message conveyed by the icing on the cake. Under s 3(1) of the Human Rights Act 1998, all legislation was, so far as it was possible to do so, to be read and given effect in a way which is compatible with the Convention rights. Although it was doubtful as to whether there had been discrimination against L on the grounds of his political opinions, there was a possibility that it might be. However, FETO should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagreed, unless justification was shown for doing so (see [55], [56] of the judgment).

RT (Zimbabwe) v Secretary of State for the Home Department; KM (Zimbabwe) (FC) v Secretary of State for the Home Department [2012] 4 All ER 843 applied; Kokkinakis v Greece [1993] ECHR 14307/88 considered; Buscarini v San Marino (Application 24645/94) (1999) 30 EHRR 208 considered; Laramore v Commodore of the Royal Bahamas Defence Force [2017] 3 LRC 645 considered; Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (2018) 44 BHRC 535 distinguished.

(3) Whether the Attorney General had been entitled to require the Court of Appeal to make a reference to the Supreme Court on 28 October 2016. 

The Court of Appeal had decided the issues before it on a case stated by the district judge pursuant to art 61(1) of the County Courts (Northern Ireland) Order 1980 (the Order). Article 61(7) of the Order provided that ‘the decision of the Court of Appeal on any case stated under this article shall be final’. 

The Attorney General had power to require or make a reference to the Supreme Court in circumstances defined by paras 33 and 34 of Sch 10 to the Northern Ireland Act 1998, as amended. Paragraph 33 conferred a power to require a reference of ‘any devolution issue which has arisen in proceedings’ which have not yet been concluded, while para 34 conferred a power to refer ‘any devolution issue which is not the subject of proceedings’ (see [72], [77] of the judgment). 

The Attorney General’s request to the Court of Appeal to make a reference had fallen within the terms of para 33, and the Court of Appeal had erred in refusing to give effect to it. In summary, what had occurred had been an error in the proper conduct of the proceedings, which could be seen to have precluded the Court of Appeal from deciding the case on a correct basis and from reaching the right outcome. Such an error took the case outside any provision that ‘the decision of the Court of Appeal on any case stated under this article shall be final’ as stated in art 61(7) of the Order. An appeal was therefore competent to the Supreme Court against all aspects of the Court of Appeal’s judgment, including its decision in respect of sexual discrimination under SORs as well as its decision in respect of political opinion or religious belief under FETO. The appellants should be given permission to appeal accordingly in the light of the undoubted importance of the substantive issues; and, in the light of the conclusions on the substantive issues, the Supreme Court could and should allow the appeal in respect of both SORs and FETO (see [80], [90] of the judgment). 

Racal Communications Ltd, Re [1980] 2 All ER 634 considered.

Order accordingly.

John F Larkin QC, Attorney General for Northern Ireland (instructed by Office of the Attorney General for Northern Ireland) for the Attorney General.

David Scoffield QC, Sarah Crowther QC and Professor Christopher McCrudden (instructed by Hewitt & Gilpin) for Ashers.

Robin Allen QC and Sinead Eastwood (instructed by The Equality Commission for Northern Ireland Legal Division) for L and the Equality Commission. 

Neneh Munu - Barrister.

There had been no discrimination on grounds of sexual orientation in circumstances where the reason for treating the respondent customer less favourably than other would-be customers had not been his sexual orientation but the message, in support of gay marriage, which he had wanted to be iced on the cake he had placed an order for with a bakery shop run by the first appellant bakery company. The UK Supreme Court so held, among other things, in an appeal by the appellants against a decision of the Court of Appeal, Northern Ireland. The Supreme Court further considered, among other things, references made by the Attorney General for Northern Ireland regarding the validity of relevant Northern Ireland legislation relating to discrimination on grounds of sexual orientation, religious belief and political opinion.

Background

In May 2010, the appellant suffered a head injury when he was assaulted by an unknown assailant. As a result, his friend drove him to an Accident and Emergency department (A&E department) managed by the respondent NHS Trust. The A&E receptionist told the appellant that he would have to wait up to four to five hours before somebody looked at him. That advice was contrary to customary practice, which was that, when a person with a head injury asked about waiting times, they would be told that they could expect to be seen by a triage nurse within 30 minutes of arrival. After 19 minutes, the appellant decided to leave because he felt too unwell to remain. Neither he, nor his friend informed the receptionist or told anyone else that they were leaving. Later that evening the appellant was returned by ambulance to the A&E department. He was transferred to the operating theatre and underwent an operation for the evacuation of a haematoma. It transpired that he had suffered permanent brain damage in the form of a severe and very disabling left hemiplegia.

The appellant commenced proceedings. His pleaded case included an allegation of breach of duty by the non-clinical reception staff concerning the information he was given about the time he would have to wait before being seen by a clinician and also a failure to assess the appellant for priority triage. In dismissing the claim, both the trial judge and the Court of Appeal concluded that neither the receptionist nor the health trust acting by the receptionist had owed any duty to advise about waiting times; alternatively there had been no causal link between any breach of duty and the injury. More particularly, it was held that to impose a duty on the receptionist not to provide inaccurate information about waiting times, would be to add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts.

The appellant appealed.

Appeal allowed.

Issues and decisions

(1) Whether a duty of care was owed to the appellant.

The present case fell squarely within an established category of duty of care. It had long been established that such a duty was owed by those who provided and ran a casualty department to persons presenting themselves complaining of illness or injury and before they were treated or received into care in the hospital’s wards. The duty was one to take reasonable care not to cause physical injury to the patient. In the present case, as soon as the appellant had attended at the respondent’s A&E department seeking medical attention for an injury he had sustained, had provided the information requested by the receptionist and had been ‘booked in’, he had been accepted into the system and entered into a relationship with the respondent of patient and health care provider. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extended to a duty to take reasonable care not to provide misleading information which might foreseeably cause physical injury (see [16] of the judgment). 

In the specific context of the present case, where misleading information had been provided as to the time within which medical attention might be available, it was not appropriate to distinguish between medically qualified professionals and administrative staff in determining whether there was a duty of care(see [17] of the judgment). 

The judgments of the majority in the Court of Appeal had mistakenly elided issues of the existence of a duty of care and negligent breach of duty (see [21] of the judgment).

Barnett v Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 1068 applied; Caparo Industries plc v Dickman [1990] 1 All ER 568 applied; Robinson v Chief Constable of West Yorkshire Police [2018] All ER (D) 47 (Feb) applied; Kent v Griffiths [2000] All ER (D) 123 considered; James-Bowen and others v Commissioner of Police of the Metropolis [2018] All ER (D) 143 (Jul) considered.

(2) Whether there had been a negligent breach of duty by the respondent.

The appellant had been misinformed as to the true position about waiting times and, as a result, misled as to the availability of medical assistance. The trial judge had made the critical finding that it was reasonably foreseeable that a person who believed that it might be four or five hours before he would be seen by a doctor might decide to leave. In the light of that finding, the provision of such misleading information by a receptionist as to the time within which medical assistance might be available had been negligent (see [27] of the judgment). 

Wilsher v Essex Area Health Authority [1986] 3 All ER 801 considered.

(3) Whether there was causal link between the breach of duty and injury. 

The conclusion of the majority of the Court of Appeal was inconsistent with the findings of fact. Far from constituting a break in the chain of causation, the appellant’s decision to leave had been reasonably foreseeable and had been made, at least in part, on the basis of the misleading information that he would have had to wait for up to four or five hours before being seen by a doctor. In that regard, it was also relevant that the appellant had just sustained what was later discovered to be a very grave head injury. In the circumstances, it was readily appreciable how the judge had come to the conclusion that the appellant’s departure was reasonably foreseeable (see [29] of the judgment).

The trial judge had made a further finding of fact that, had the appellant suffered the collapse while at the A&E department, he would have undergone surgery earlier, with the result that he would have made a very near full recovery (see [30] of the judgment).

Accordingly, the case that the appellant’s unannounced departure from the A&E department had broken the chain of causation was simply not made out (see [31] of the judgment). 

Decision of Court of Appeal, Civil Division [2017] EWCA Civ 151 Reversed.

Simeon Maskrey QC and Jeremy Pendlebury (instructed by Russell-Cooke LLP) for the appellant. 

Philip Havers QC, Bradley Martin QC and Ruth Kennedy (instructed by Capsticks Solicitors) for the respondent.

Paul Mclachlan - Barrister.

The judge had erred in deciding that there had been no breach of duty by the respondent NHS Trust’s receptionist when she provided misleading information to the appellant about waiting times. Further, the appellant’s unannounced departure from the Accident and Emergency department had not broken the chain of causation. Accordingly, the Supreme Court allowed the appellant’s appeal relating to his claim for damages arising from brain damage suffered as a result of non-timely medical assistance, and remitted the case to the Queen’s Bench Division for the assessment of damages.

Background

The appellant local authority (Nottingham) was the licensing authority for those houses in multiple occupation (HMOs) in its district that were licensable under Pt 2 of the Housing Act 2004 (HA 2004). The second respondent company carried on the business of providing accommodation to students. The first respondent was the managing director of the second respondent and the manager of two HMOs.

Nottingham granted a new HMO licence regarding each HMO, which imposed a condition prohibiting the use of the attic bedroom of each of the respondents’ HMOs for sleeping. Further restrictions were imposed in one of HMOs (the Bute property). 

The respondents appealed to the First-tier Tribunal (the FTT) in each case about the imposition of the conditions. The FTT allowed the appeal with regard to the attic bedrooms, although it imposed an alternative condition in one property (the Rothsay property): namely that the second floor front bedroom could only be used for sleeping accommodation by a person engaged in full-time education and who resided in the property for a maximum of ten months in one year (the time condition). Nottingham appealed unsuccessfully to the Upper Tribunal (Lands Chamber), which imposed the time condition on the Bute property in addition to the Rothsay property, and to the Court of Appeal, Civil Division (see [2017] All ER (D) 195 (Mar)). The Court of Appeal added the licences to include two further conditions: (i) that the communal space on the ground floor be kept available for communal living space only; and (ii) that no bedrooms could be let to persons other than students engaged in full-time education.

Nottingham appealed to the Supreme Court.

Appeal dismissed.

Issues and decisions

(1) Whether the conditions were lawful. Nottingham submitted that the conditions imposed sought to make an exception for full-time students otherwise than in the circumstances permitted by the legislation. Under HA 2004 s 64(3)(a), the authority had to be satisfied ‘that the house is reasonably suitable for occupation by not more than the maximum number of households or persons mentioned in subsection (4) or that it can be made so suitable by the imposition of conditions under section 67.’ Nottingham contended that the legislation was unequivocal and concerned only with numbers. Further, HA 2004 s 67(2)(a), which permitted ‘conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it’ did not permit conditions restricting who could occupy an HMO. It submitted that the references elsewhere in the statute to the characteristics of occupants did not support setting conditions by reference to such characteristics.

The imposition of conditions such as those imposed by the tribunals and the Court of Appeal in the present case did not fail to protect the vulnerable or result in lower standards being imposed for particular groups, such as students. It was entirely appropriate, when considering the suitability of accommodation in an HMO for a particular purpose, to have regard to the mode of occupation. If the house was to be occupied by a group living together ‘cohesively’, each having his or her own bedroom, but sharing other facilities including a kitchen/diner and a living room, the availability of those additional facilities was a material consideration. In those circumstances, the mode of occupation meant that the shared facilities would benefit all the occupants and, as a result, that could compensate for a bedroom which was slightly smaller than the recommended minimum. By contrast, where occupants of an HMO each lived independently of all others, sharing only bathroom, toilet and kitchen facilities, any communal living space made available would not benefit the occupants in the same way because of their different living arrangements (see [25] of the judgment). 

It was entirely appropriate, therefore, that, in considering the suitability of accommodation in an HMO, regard should be had to the proposed mode of occupation. Furthermore, in appropriate cases, effect could be given to such considerations by the imposition of conditions in the license. That was not inconsistent with the statutory scheme. Certain types of accommodation might lend themselves to different styles of occupation and it would be surprising if the HA 2004 did not reflect that. The various relevant guidelines referred in different ways to the need for flexibility in their application. In that regard, account had to be taken of the proposed mode of occupation where it was likely to influence the quality of the accommodation made available to the occupant. It had to be emphasised that that did not permit the application of lower standards than would otherwise be applicable. On the contrary, it was simply that there would be certain circumstances in which, as a matter of common sense, it would be appropriate to have regard to the mode of occupation when applying the same objective standards which applied to all HMOs (see [26] of the judgment).

Consequently, the power to impose conditions under HA 2004 ss 64 and 67, in order to make an HMO suitable for a particular number of households or persons, could be used so as to limit the class of persons for whom the HMO was suitable (see [27] of the judgment).

Barnes v Sheffield City Council [1995] Lexis Citation 2594 considered.

(2) Whether, if there was a power to impose a condition based on a class of occupier, the time conditions in the present case as directed by the tribunals and the Court of Appeal were irrational, both in the conventional sense and in the sense that they were not effective to achieve their purpose and were incapable of enforcement.

The conditions imposed by the tribunals had been deficient, in that they had failed to require any part of the HMO to be available for communal living and had not required the bedrooms, other than the front attic bedrooms, to be let to students. That deficiency, however, had been cured by the further conditions introduced by the Court of Appeal (see [33] of the judgment).

The normal state of affairs generally to be expected when students shared a student house was that there would be a high level of social activity and social interaction among them and that they would all make extensive use of the shared living facilities (see [35] of the judgment). 

The requirement that the attic rooms could only be occupied for ten months in each year had clearly been intended to reinforce the requirement that occupation be by full-time students. If the latter requirement was lawful, the former was strictly unnecessary. The requirement limiting occupation to ten months in each year was irrational. If a room was suitable for occupation for sleeping for ten months in the year, it was suitable for such occupation for the entire year. Moreover, full-time students often required accommodation for the entire year. In those circumstances, it was unnecessary to consider whether that requirement was enforceable. The conditions imposed in respect of each property would be amended to delete the requirement that the attic rooms could only be occupied for ten months in each year (see [36] of the judgment).

Subject to the deletion of the requirement of occupation for only ten months in each year, the conditions imposed by the tribunals and the Court of Appeal, considered cumulatively, in respect of both HMOs had been entirely lawful (see [38] of the judgment).

Decision of Court of Appeal, Civil Division [2017] All ER (D) 195 (Mar) Affirmed In Part.

Andrew Arden QC and Annette Cafferkey (instructed by Nottingham City Council) for Nottingham.

The respondents did not appear and were not represented.

Martin Chamberlain QC as advocate to the court.

Jonathan Moffett QC and Heather Emmerson (instructed by the Government Legal Department) for the Secretary of State for Housing, Communities and Local Government, as intervener.

Toby Frost - Barrister.

The appellant local authority’s appeal failed in large part, in a dispute concerning the imposition of conditions as to residence at two houses in multiple occupation (HMOs). The Supreme Court held that the power to impose conditions under ss 64 and 67 of the Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, could be used so as to limit the class of persons for whom the HMO was suitable. The court also deleted a requirement of occupation for only ten months in each year from the conditions on the two HMOs, but otherwise held that the conditions imposed by the lower courts and tribunals had been entirely lawful.