17 December 2018

Background

The reference arose as a result of the UK’s intention to withdraw from the European Union, in accordance with art 50 of the Treaty on European Union. To achieve legal continuity and to promote legal certainty, the UK government considered it necessary to incorporate direct EU legislation into domestic law and to preserve the effect of EU-derived domestic legislation after UK withdrawal. Accordingly, in June 2018, it passed the European Union (Withdrawal) Act 2018 (the EU(W)A 2018), that repealed the European Communities Act 1972 (the ECA 1972). 

The Scottish government also sought to introduce similar legislation. In February 2018, it presented the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the Scottish Bill) to the Scottish Parliament. Although the Scottish government expressed the view that the Bill would be within the legislative competence of the Scottish Parliament, the presiding officer disagreed. However, on 21 March 2018, the Scottish Parliament passed the Scottish Bill. 

Subsequently, the Attorney General and the Advocate General for Scotland (the UK law officers) made a reference, pursuant to s 33 of the Scotland Act 1998 (the SA 1998), to the Supreme Court to determine the legislative competence of the Scottish Parliament. 

Issues and decisions

(1) Whether the Scottish Bill as a whole was outside the legislative competence of the Scottish Parliament.

The Scottish Bill as a whole would not be outside the legislative competence of the Scottish Parliament because it did not relate to reserved matters (see [125] of the judgment). 

The Scottish Parliament was a legislature of unlimited legislative competence, subject to the limitations in the SA 1998 s 28 and 29. In the present case, the only relevant issue was whether the Scottish Bill related to reserved matters, specifically relations with the EU, within the meaning of the SA 1998 s 29(2)(b) (see [25], [26] of the judgment). 

The Scottish Bill did not relate to relations with the EU. It would take effect at a time when there would be no legal relations with the EU, unless a further treaty was made with the EU. It simply regulated the legal consequences in Scotland of the cessation of EU law as a source of domestic law relating to devolved matters, which would result from the withdrawal from the EU already authorised by the UK Parliament. That was something the Scottish Parliament was competent to do (see [33] of the judgment).

Martin v HM Advocate (Scotland); Miller v HM Advocate (Scotland) [2010] All ER (D) 30 (Mar) considered; AXA General Insurance Ltd v Lord Advocate (Scotland) 2011 Scot (D) 14/10 considered; Imperial Tobacco Ltd v The Lord Advocate (Scotland) 2012 Scot (D) 12/12 considered.

(2) Whether s 17 of the Scottish Bill (that required the Scottish ministers’ consent to certain subordinate legislation) was outside the legislative competence of the Scottish Parliament.

Section 17 of the Scottish Bill would be outside the legislative competence of the Scottish Parliament because it would modify the SA 1998 s 28(7) (see [125] of the judgment).

The power of the UK Parliament to make laws for Scotland included the power to make laws authorising the making of subordinate legislation by ministers and other persons. An enactment of the Scottish Parliament which prevented such subordinate legislation from having legal effect, unless the Scottish ministers had given their consent, would render the effect of laws made by the UK parliament conditional on the consent of the Scottish ministers. It would, therefore, limit the power of the UK Parliament to make laws for Scotland, since Parliament could not meaningfully be said to make laws if the laws which it had made were of no effect. The imposition of such a condition on the UK Parliament’s law-making power would be inconsistent with the continued recognition, by s 28(7) of its unqualified legislative power (see [52] of the judgment). 

Section 17 of the Bill did not relate to the matter reserved by the SA 1998 Sch 5 Pt 1 para 1(c). The preferable analysis was that, although s 17, if it became law, would not affect Parliamentary sovereignty, it would nevertheless impose a condition on the effect of certain laws made by the UK Parliament for Scotland, unless and until the UK Parliament exercised its sovereignty so as to disapply or repeal it (see [60], [64] of the judgment). 

Martin v HM Advocate (Scotland); Miller v HM Advocate (Scotland) [2010] All ER (D) 30 (Mar) considered; Imperial Tobacco Ltd v The Lord Advocate (Scotland) 2012 Scot (D) 12/12 considered; Agricultural Sector (Wales) Bill, Re; A-G v Counsel General for Wales (A-G for Northern Ireland intervening) [2014] All ER (D) 84 (Jul) considered.

(3) Whether s 33 of, and Sch 1 to, the Scottish Bill (that provided for the repeal of EU references in the SA 1998) were outside the legislative competence of the Scottish Parliament.

Section 33 of, and Sch 1 to, the Scottish Bill would not be outside the legislative competence of the Scottish Parliament on the basis that they would modify provisions of the SA 1998 (see [125] of the judgment). 

The constitutional principle (namely, that a legislature had no power to ignore the conditions of law-making that had been imposed by the instrument which itself regulated its power to make law) was not breached if there was a provision in the SA 1998 which allowed the Scottish Parliament to repeal provisions in that Act which regulated its competence. The Lord Advocate had been right in his submission that the SA 1998 Sch 4 para 7 was such a provision (see [68], [71] of the judgment). 

Bribery Comr v Ranasinghe [1964] 2 All ER 785 considered; The Christian Institute v The Lord Advocate 2016 Scot (D) 25/7 considered.

(4) Whether various provisions of the Scottish Bill were outside competence because they: (i) were incompatible with EU law; (ii) modified the ECA 1972 s 2(1); and/or (iii) were contrary to the rule of law.

The specific provisions of the Scottish Bill would not be outside the legislative competence of the Scottish Parliament because they: (i) were not incompatible with EU law; (ii) did not modify the ECA 1972; and (iii) were not contrary to the rule of law (see [125] of the judgment). 

The submissions of the UK law officers rested on the premise that the Scottish Parliament did not presently have legislative competence to pass an Act containing provisions which could not be brought into effect until current restraints on legislative competence were removed at a future date (see [81] of the judgment). 

The effect of s 1(2) and (3) of the Scottish Bill was that none of the relevant sections of the Bill could have legal effect until the provision of EU law with which it was incompatible had ceased to have effect as a consequence of the UK withdrawal. Absent such legal effect, there was no incompatibility with EU law, or modification of the ECA 1972 s 2(1) (see [84], [85] of the judgment). 

The residual challenge based on the rule of law was misconceived (see [86] of the judgment). 

(5) Whether the Supreme Court could consider the effect of the EU(W)A 2018 in the context of the present reference, or whether it had to examine both the Scottish Bill and the SA 1998 as each of them had stood on 21 March 2018.

The task of the Supreme Court, when deciding a question in a reference under the SA 1998 s 33, was to determine whether the Bill or provision of the Bill would be within legislative competence if it were to receive Royal Assent at the time of the Supreme Court’s decision. Accordingly, the amendment of the SA 1998 by the EU(W)A 2018 could be considered (see [97] of the judgment). 

(6) Whether the EU(W)A 2018 effected the legislative competence of the Scottish Parliament in relation to the Scottish Bill.

As a result of the enactment of the EU(W)A 2018, the following provisions of the Scottish Bill would, at least in part, be outside the legislative competence of the Scottish Parliament: ss 2(2), 5, 7(2)(b) and (3), 8(2), 9A, 9B, 10(2), (3)(a) and (4)(a), 11, 13B, 14, 14A, 15, 16, 19(1), 22, 26A(6), 33(1), (2) and (3) and Sch 1 paras 11(a) and 16 (see [125] of the judgment).

By adding the EU(W)A 2018 to the list of provisions in the SA 1998 Sch 4 para 1(2), which were protected against modification, the UK Parliament had chosen to protect the EU(W)A 2018 against subsequent enactments under devolved powers which would alter a rule in the EU(W)A 2018 or conflict with its unqualified continuation in force. However, a protected enactment would be modified by a later enactment, even in the absence of express amendment or repeal, if it was implicitly amended, disapplied or repealed in whole or in part. Therefore, the specified provisions would not be within legislative competence if the Scottish Bill were to receive Royal Assent (see [99], [100] of the judgment). 

Lord Keen, James Eadie QC, Jason Coppel QC, Margaret Gray and BJ Gill (instructed by the Government Legal Department) for the applicants.

Walter Wolffe QC, James Mure QC, Christine O’Neill and Lesley Irvine (instructed by the Scottish Government Legal Directorate) for the Lord Advocate.

Michael Fordham QC, Hollie Higgins (instructed by Welsh Government Legal Services Department) for the Counsel General to the Welsh Government, as intervener. 

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

Paul Mclachlan - Barrister.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, as a whole, would not be outside the legislative competence of the Scottish Parliament because it did not relate to reserved matters, within the meaning of s 29(2)(b) of the Scotland Act 1998. The Supreme Court so ruled, among other things, in a reference by the applicant Attorney General and the Advocate General for Scotland as to whether the Scottish Parliament had the power to legislate for the continuity of laws relating to devolved matters in Scotland which were presently the subject of EU law, but which would cease to have effect after the UK had withdrawn from the EU.

Background 

The defendant Secretary of State made the NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) (England) Directions 2005 (the 2005 Directions), pursuant to the National Health Service Act 1977 (the NHSA 1977). Paragraph 4 of the 2005 Directions directed NHS Blood and Transplant Special Health Authority to allot organs for transplantation by prioritising persons ordinarily resident in the United Kingdom over persons not ordinarily resident (subject to limited exceptions). 

The claimant Ghanaian national, who had entered and remained in the UK illegally, and who suffered from end-stage kidney disease, sought judicial review of the 2005 Directions. The Divisional Court dismissed the claimant’s application and he appealed on the ground that the Divisional Court had erred in law in concluding that para 4 of the 2005 Directions was not ultra vires the Secretary of State’s powers under the National Health Service Act 2006 (the NHSA 2006), which repealed the NHSA 1977. 

Appeal dismissed.

Issues and decisions 

(1) Whether provisions specified in the introduction to the 2005 Directions had expressly provided that it was not unlawful to prioritise between illegal immigrants and anyone else for the time being in England for the provision of health care except on clinical grounds.  

The NHSA 2006 s 272(7) (equivalent to the NHSA 1977 s 126(4)) did not do so.  The NHSA 2006 s 272(7)(b)(ii) and (iii) (and the NHSA 1977 s 126(4)(b)(ii) and (iii)) had specifically provided for a power to give directions to be exercised so as to make different provision for different cases or different classes of case, and either conditionally or unconditionally. However, those provisions related to an existing power to give directions to be found substantively elsewhere in the legislation.  They were not themselves substantive or enabling provisions which created or enlarged a power. They provided how the power might be exercised consistent with its scope (see [52] of the judgment). 

It was also not possible to find in the NHSA 2006 s 7 (equivalent to the NHSA 1977 s 17 both in its original form and as substituted) a statutory basis for enabling the Secretary of State, when conferring a function on a special health authority, to provide for the special health authority to conduct that function, in terms of priority of entitlement, by making priority dependent on ordinary residence if the Secretary of State could not have exercised the function in that way (see [53] of the judgment). 

It was doubtful that the NHSA 2006 s 8 on its own was sufficient to provide a statutory power for the differential treatment of patients based on ordinary residence in para 4 of the 2005 Directions, for two reasons. A purposive reading of s 8, like the NHSA 2006 ss 272 and 7 (and the equivalent provisions in the NHSA 1977) would confine the power under s 8(1) and (3) in respect of a function delegated under s 7 to the same legal limitations of the function as operated prior to that delegation. Otherwise, ss 7 and 8 (and the equivalent provision in the NHSA 1977) would provide an easy mechanism by which the Secretary of State could circumvent any legal limitations on the exercise of a health service function while vested in him. That was unlikely to have been the intention of Parliament (see [56] of the judgment).  

However, a conclusion did not have to be reached on whether the 2005 Directions could have been made pursuant to s 8 alone because the matter did not end there. The NHSA 1977, and its predecessor legislation, had made no express provision for organ transplantation. Express provision had first been made by the NHSA 2006 Sch 1 para 7C, which was inserted by the Health and Social Care Act 2012 (the HSCA 2012).  It provided that the Secretary of State had to, for the purposes of the health service, make arrangements for (among other things) facilitating tissue and organ transplantation. The explanatory notes to the HSCA 2012 had explained that the Secretary of State had the responsibility for that under his then existing functions under the NHSA 2006 ss 2 and 3 and, by virtue of the new para 7C, would continue to have responsibilities for those arrangements, despite changes to those sections made by the HSCA 2012 and that, as before, the functions would be performed by NHS Blood and Transplant Special Health Authority, rather than by the Department of Health (see [57] of the judgment). 

It was clear from that that organ transplantation fell within the Secretary of State’s functions under the original wording of the NHSA 2006 s 3(1) (equivalent to the previous provisions in the NHSA 1977 s 3(1)), most appropriately s 3(1)(e) and (f). Importantly, under those provisions, the Secretary of State’s duty had been to provide those services to such extent as he considered necessary to meet all reasonable requirements. Therefore, the ultimate source of the power to make the 2005 Directions derived from the NHSA 1977 s 3(1) and the NHSA 2006 s 3(1) in its successive iterations (see [58], [59] of the judgment). 

(2) Whether s 3 had conferred on the Secretary of State the power to give the directions in para 4 of the 2005 Directions and, in particular, whether she had been entitled, as a matter of public law, to take the view that the prioritisation in para 4 of those ordinarily resident in England over those who were not had been all that was necessary to meet all reasonable requirements. 

The Secretary of State had not been in breach of any public law duty in forming the view that what was necessary to meet all reasonable requirements for the allocation of kidney organs for the purpose of transplantation was an allocation which, among other things, prioritised persons ordinarily resident in England over those not ordinarily resident. Even though both the NHSA 1977 s 1(1) and the NHSA 2006 s 1(1) required the Secretary of State to promote a comprehensive health service in England, and even if a person not ordinarily resident fell within limb (b) of s 1(1), the Secretary of State had still been entitled to exercise her judgement as to what was necessary to meet the reasonable requirements at any particular moment of time, if necessary by prioritising on the basis of residence. She had been entitled to do so because, although she had had to have regard to the duty in s 1(1), that had been a time unlimited aspirational target, but her judgement of what was necessary had to be informed by a present shortage of resources and the acute shortage of donated organs for transplantation in particular (see [62] of the judgment). 

R v North and East Devon Health Authority, ex p Coughlan (Secretary of State for Health and another intervening) [2000] 3 All ER 850 applied; R (on the application of YA) v Secretary of State for Health [2010] 1 All ER 87 applied; R (on the application of the Public Law Project) v Secretary of State for Justice [2015] 2 All ER 689 considered.

Decision of Divisional Court  [2017] All ER (D) 75 (Nov) affirmed.

Helen Mountfield QC and Sarah Hannett (instructed by Deighton Pierce Glynn) for the claimant.

Ivan Hare QC (instructed by the Government Legal Department) for the Secretary of State.

NHS Blood and Transplant, as interested party, did not appear and was not represented.

Karina Weller - Solicitor (NSW) (non-practising).

The Secretary of State had not been in breach of any public law duty in forming the view that what was necessary to meet all reasonable requirements for the allocation of kidney organs for the purpose of transplantation was an allocation which prioritised persons ordinarily resident in England over those not ordinarily resident. Accordingly, the Court of Appeal, Civil Division, affirmed the Divisional Court’s decision, dismissing the application for judicial review by the claimant Ghanaian national who suffered from end-stage kidney disease of para 4 of the NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) (England) Directions 2005.

Background

The petitioners included members of the Scottish, UK and European Parliaments. The respondent was the Secretary of State for Exiting the European Union (UK). The proceedings concerned the notification given on 29 March 2017 of the UK’s intention to withdraw from the EU, in accordance with art 50 of the Treaty on European Union (TEU). The petitioners petitioned the Court of Session for a declaration as to whether, when and how that notification could unilaterally be revoked. In June 2018, the Lord Ordinary refused the petition (see 2018 Scot (D) 4/7). However, in September, the First Division of the Inner House allowed an appeal against that decision and ruled that a preliminary ruling by the Court of Justice of the European Union (the Court) on the interpretation of art 50 was necessary to enable the Court of Session to give judgment (see [2018] All ER (D) 72 (Sep)). The Secretary of State appealed. However, the Supreme Court (UK) refused permission to appeal.

In those circumstances, a reference for a preliminary ruling was made to the Court. Observations were submitted on behalf of The Council of the European Union (the Council) and the European Commission (the Commission). 

Issues and decisions

Whether a unilateral right of revocation existed under art 50 TEU.

The Council  and the Commission had argued that art 50 should be interpreted as allowing revocation, but only with the unanimous consent of the European Council (see [42] of the judgment). 

Article 50 TEU pursued two objectives, namely, first, enshrining the sovereign right of a member state to withdraw from the EU and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion. In the absence of an express provision governing revocation of the notification of the intention to withdraw, that revocation was subject to the rules laid down in art 50(1) TEU for the withdrawal itself, with the result that it might be decided upon unilaterally, in accordance with the constitutional requirements of the member state concerned (see [56], [58] of the judgment). 

Article 50 TEU had to be interpreted as meaning that, where a member state had notified the European Council, in accordance with that article, of its intention to withdraw from the EU, that article allowed that member state - for as long as a withdrawal agreement concluded between that member state and the EU had not entered into force or, if no such agreement had been concluded, for as long as the two-year period laid down in art 50(3), possibly extended in accordance with that paragraph, had not expired - to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the member state concerned had taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation was to confirm the EU membership of the member state concerned under terms that were unchanged as regards its status as a member state, and that revocation brought the withdrawal procedure to an end (see [75] of the judgment).

Parti Ecologiste Les Verts v European Parliament: 294/83 [1986] ECR 1339 considered; Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve: C-184/99 [2001] All ER (D) 57 (Sep) considered; Chen v Secretary of State for the Home Department: C-200/02 [2004] All ER (D) 253 (Oct) considered; Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities. Common foreign and security policy (CFSP) - Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - United Nations - Security Council - Resolutions adopted under Chapter VII of the Charter of the United Nations - Implementation in the Community - Common Position 2002/402/CFSP - Regulation  [2008] ECLI:EU:C:2008:461 considered; Rottmann v Freistaat Bayern: C-135/08 [2010] All ER (D) 52 (Mar) considered; Inuit Tapiriit Kanatami v European Parliament: C-583/11 P [2013] All ER (D) 246 (Nov) considered; Pringle v Government of Ireland Pringle v Government of Ireland: C-370/12 [2013] All ER (EC) 1 considered; European Parliament v European Commission: C-286/14 [2016] All ER (D) 186 (Mar) considered; Slovak Republic v Achmea BV [2018] All ER (D) 96 (Mar) considered; Minister for Justice and Equality (Défaillances du système judiciaire) [2018] C-216/18 considered; RO [2018] All ER (D) 38 (Sep) considered.

Per curiam: Preliminary issue determined. 

Paul Mclachlan - Barrister.

Article 50 of the Treaty on European Union (TEU) had to be interpreted as meaning that, where a member state had notified the European Council, in accordance with that article, of its intention to withdraw from the EU, that article allowed that member state - for as long as a withdrawal agreement concluded between that member state and the EU had not entered into force or, if no such agreement had been concluded, for as long as the two-year period laid down in art 50(3), possibly extended in accordance with that paragraph, had not expired - to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the member state concerned had taken the revocation decision in accordance with its constitutional requirements. The Court of Justice of the European Union so ruled in a preliminary ruling concerning the interpretation of art 50 TEU in proceedings regarding the possibility of unilaterally revoking the notification of the UK’s intention to withdraw from the EU.

Background 

The claimant’s daughter, PW, died at her home on 12 December 2012, aged 13 months. The post-mortem examination suggested that, shortly before her death, PW had suffered acute injuries to her anus and rectum. The defendant coroner found that, that night, she had been taken from her own cot to a double bed, where she had been anally penetrated, but that had not caused or contributed to her death. PW had died as a result of her ability to breathe being compromised by an unsafe sleeping environment. 

The claimant, sought judicial review, contending that the coroner had erred in referring to the fact of anal penetration in the section of his review which concerned conclusion as to death, in particular, paras 147 and 148, and in his record of inquest, in particular, box 3 (for the particular references challenged, see [28], [29] of the judgment). He sought an order requiring the removal of those references. 

Application dismissed.

Issues and decisions 

Whether, the coroner had failed to confine himself to ascertaining and recording ‘how’ PW’s death had occurred, as required and limited by s 5(1) and (3) of the Coroners and Justice Act 2009 (the CJA 2009), but had trespassed into the circumstances in which it had occurred, essentially treating the present as a case under art 2 of the European Convention on Human Rights to which s 5(2) applied. 

The coroner had clearly adopted the three-stage process in respect of an inquest in the Chief Coroner’s Guidance, setting out his analysis and findings of fact in the body of the review, before setting out in boxes 3 and 4 of his record of the inquest both ‘how’ PW had come by her death and the conclusion. Although paras 147-148 of the coroner’s conclusion as to death dealt with his reasoning as to why a short-form conclusion as to either unlawful killing or accidental death had not been appropriate, his determination of the question ‘how’, as mentioned in s 5(1)(a), was set out in box 3. In the light of the concession that the findings of fact had been unimpeachable, the criticism of those two paras was unfounded (see [36] of the judgment). 

In so far as the claimant was concerned about the part of the review to which, in the future, formal reference would be made, that would be the record of the inquest. What went before was the analysis of the evidence and findings of fact to which box 3 was a distillation of ‘how’ PW had come by her death. Therefore, the proper focus of the complaint was upon the words ‘where she was anally penetrated’ in box 3. In any event, the coroner had not erred in recording his finding of anal penetration in his determination, whether viewed as restricted to box 3, or as extending to paras 147-148. None of the references compromised s 5(3), because none expressed an opinion: the references merely repeated a finding of fact made earlier in the review. Nor did they breach the CJA 2009 s 10(1) by, in making a determination of one of the questions mentioned in s 5(1)(a) and (b) (namely the ‘how’ question), straying beyond the means by which PW had come by her death, into the wider circumstances attending her death (see [37]-[40] of the judgment). 

Where one of the main issues in an inquest was whether death had been caused by reflex cardiac arrest as a result of trauma, the coroner had, at least, been entitled to include in the record of inquest why he had found that not to be the case, leaving another cause (namely, asphyxia) as the main, if not only, suggested cause (see [43] of the judgment). 

Neither the coroner’s approach nor his conclusion could be faulted. To set out a negative conclusion in the determination of a s 5(1) matter, for example that something suggested as causative had not caused the death, was not proscribed by the statutory provisions. In the circumstances of a particular case, it might be appropriate or even obligatory to ensure the legal requirements for a such a determination were met. Each case was fact-sensitive. In the present case, the coroner had been right to conclude that it had been appropriate to include in box 3 of the record of the inquest references to the anal penetration in the hours before PW’s death because it had been essential to explain why she had been in the unsafe sleeping environment which had caused her death. It had also clearly been necessary for the coroner to explain in his review why he had concluded that that had not been unlawful killing, as he had in para 147 and why he had concluded that it had not been accidental death, as he had in para 148. In coming to those reasoned conclusions, the coroner had used patently careful and appropriately neutral language that had not offended either ss 5 or 10 or the Chief Coroner’s Guidance (see [46] of the judgment). 

The claimant sought the striking out of the references on the basis that it would be of real practical benefit because, in the fullness of time, it would be only the record of the inquest that would be retained and formally referred to. The factual premise upon which that submission was based was doubtful. However, if that premise were ever to be made good, then the record would clearly be deficient without reference to the finding of anal penetration. It would fail adequately to explain why PW had been in the unsafe sleeping environment which had caused her death. The coroner had been entitled to include that reference in box 3 as well as in paras 147 and 148 (see [47] of the judgment). 

In the present case, the coroner’s review had been exemplary. He had considered and analysed the evidence with particular care, making findings of fact which were unchallengeable. The coroner had not erred in law in including the references to the anal penetration, either in box 3 of the record of the inquest, or in paras 147-148 of the narrative (see [52] of the judgment). 

R v HM Coroner for North Humberside and Scunthorpe, ex p Jamieson [1994] 3 All ER 972 considered; R (on the application of Middleton) v West Somerset Coroner [2004] 2 All ER 465 considered; R (on the application of Hurst) v Northern District of London Coroner [2007] 2 All ER 1025 considered; McDonnell v HM Assistant Coroner for West London [2016] All ER (D) 71 (Dec) considered.

Leslie Thomas QC and Nick Scott (instructed by Farleys Solicitors LLP) for the claimant.

Samantha Leek QC (instructed by Weightmans LLP) for the coroner.

The interested parties did not appear and were not represented. 

Karina Weller - Solicitor (NSW) (non-practising).

The defendant coroner in the inquest into the death of Poppi Worthington had not erred in law in including references to anal penetrationin the section of his review which concerned conclusion as to death and in his record of inquest. The Divisional Court, in dismissing her father’s application for judicial review, held that the coroner’s review had been exemplary, he had considered and analysed the evidence with particular care, and made findings of fact which were unchallengeable.

Background 

From 2010, the applicant was in receipt of disability living allowance (DLA). At some time before April 2017, the respondent DWP embarked on an investigation of his claim. It later transpired that, in the course of the  investigation, a caseworker had emailed one of the applicant’s then employers and disclosed a substantial amount of information about the applicant’s health which he had confided to the DWP at the time of his initial application for DLA. The DWP had also handed a copy of the same private information to a former employer of the applicant. 

The applicant sent a letter of claim to the DWP, asserting claims for breach of confidence, misuse of private information, breach of duty under the Data Protection Act 1998 and breach of the Human Rights Act 1998. The DWP made a CPR Pt 36 offer, which the applicant accepted. However, he applied, pursuant to CPR PD 53.6, for permission to make a statement in open court (SIOC) about the privacy claim. The text of the SIOC had been agreed between the parties, subject to the important qualification: the applicant wished to make the statement anonymously; the respondent did not accept that was justified. 

Application dismissed.

Issues and decisions 

Whether justice demanded that the applicant be allowed to make a SIOC containing all the intimate detail that features in the agreed draft, whilst derogating from open justice by allowing that to be done anonymously.  

The applicant had failed to establish that justice demanded that he be allowed to make an anonymous SIOC (see [37] of the judgment). 

It was not established that the justice of the case demanded a SIOC at all. The case was one of limited disclosure to two individuals, some time ago. The consequences had been serious, but they had not been public. The documentary records had been destroyed and there was no evidence of any further disclosure. The DWP had acknowledged fault, promptly apologised, and satisfactory compensation had been offered and accepted. All of that had been achieved privately, through correspondence, without the need for legal proceedings. Nobody had seen the need at the time of settlement for any public statement about the matter or else that could and would have been part of a negotiated compromise deal. The evidence made clear that it had only been later that the applicant had turned his thoughts to the desirability of a SIOC. The need for one was not plain and obvious, from the applicant’s perspective (see [38] of the judgment). 

There was a public interest argument for publicity in the case. It involved the misuse by a public authority of private information confided to it by a citizen, for a specific purpose. They were facts that the public was entitled to know. However, there was no obstacle to publicity. The authorities did not provide support for so general a proposition that one function of a SIOC was to provide a megaphone for a complainant who secured a settlement of the kind (see [40] of the judgment). 

Accordingly, the derogation from justice which anonymisation of the draft SIOC would involve was not a measure that was either necessary to do justice, or proportionate to that or any other legitimate aim pursued by the applicant. A SIOC which named the applicant and explained the facts, without going into detail, was one that was fair and proportionate (see [53] of the judgment). 

Webb v Lewis Silkin LLP  [2016] EWHC 1225 (Ch) doubted; Guardian News and Media Ltd, Re [2010] 2 All ER 799 applied; JIH v News Group Newspapers Ltd [2011] 2 All ER 324 applied; Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003 applied; Murray v Associated Newspapers Ltd [2015] All ER (D) 151 (May) applied; JXMX (by her mother and litigation friend AXMX) v Dartford and Gravesham NHS Trust [2015] All ER (D) 180 (Feb) considered; Barnet v Crozier [1987] 1 All ER 1041 considered; PJS v News Group Newspapers Ltd [2016] 4 All ER 554 considered; Richard v The British Broadcasting Corporation and Another [2017] EWHC 1648 (Ch) considered.

Ian Helme (instructed by Brett Wilson LLP) for the applicant.

Aidan Eardley (instructed by Government Legal Department) for the DWP.

Karina Weller - Solicitor (NSW) (non-practising).

The applicant had failed to establish that justice demanded that he be allowed to make a statement in open court (SIOC) about his settled privacy claim against the defendant DWP, containing all the intimate detail that featured in an agreed draft, whilst derogating from open justice by allowing that to be done anonymously. The Queen’s Bench Division held that a SIOC which named the applicant and explained the facts, without going into detail, was one that was fair and proportionate. 

Background 

The applicant wife applied for financial remedy orders against the husband son of the Grand Duke and Grand Duchess of Luxembourg. Pursuant to the relevant Luxembourgish legal provisions, the second defendant (the ADB) was a structure that held and managed, on behalf of a reigning Grand Duke, elements of the fortune intended to be passed on to future Grand Dukes and money received by the Grand Duke from the state of Luxembourg. 

Issues and decisions 

(1) What was the extent of the matrimonial assets.   

With respect to ownership of former matrimonial home, the available evidence demonstrated that the husband did not own a share of the beneficial interest in it. The declaration of an express trust purportedly evidenced by the transfer form could only be effective if, at the time they purported to declare it, the husband and the Grand Duke had been ‘able’ to declare a trust of the beneficial interest for themselves for the purposes of s 53(1)(b) of the Law of Property Act 1925. However, at the time they had purported so to declare, the beneficial interest in the former matrimonial home had been vested in the ADB under a resulting trust. Accordingly, the beneficial interest in the former matrimonial home did not fall for distribution in the financial remedy proceedings between the husband and the wife (see [109], [111], [117] of the judgment). 

With respect to post-nuptial settlement of the former matrimonial home, neither the ADB nor the husband sought to dispute that the former matrimonial home comprised a post-nuptial settlement in circumstances where it had been purchased as a home for the husband, wife and children. As to the contents of the post-nuptial settlement, on the evidence, what had been created by that post-nuptial settlement was an interest which, although sufficiently enduring to satisfy the criterion of making ‘continuing provision’, was analogous to a bare licence determinable on the giving of a reasonable period of notice. There was no basis for concluding, in the present case, that the contents of the post-nuptial settlement had extended to an interest analogous to a life interest or to a term of years certain. Rather, on the facts of the case, the post-nuptial settlement that existed had created, in effect, a bare licence to occupy terminable on reasonable notice, that reasonable notice period being six months (see [118], [120] of the judgment). 

With respect to inheritance, the husband’s prospect of a future inheritance was not sufficiently certain to enable the court to regard the same as a financial resource falling for distribution in the proceedings.  It might be that the husband would, in due course, receive further funds by way of inheritance.  However, on the evidence currently before the court, it was not possible, as the wife conceded, to say with sufficient certainty when he would do so.  Nor was it possible, on the evidence before the court, to be sufficiently certain of the amount of any further payment to be made.  In the circumstances, the husband’s future inheritance prospects were simply not a sufficiently certain foundation upon which to rest an award to the wife (see [121] of the judgment). 

With respect to the husband’s family as a resource, it would be wrong to conclude that the husband’s family represented a financial resource on which the court could rely when determining the ability of the husband to satisfy any award that it made in favour of the wife (see [122] of the judgment). 

With respect to other potential capital assets, there was no evidence to suggest that the husband’s minority share in the property in Paris in which he currently resided could be liquidated. Further, the wife had not demonstrated that the husband had undisclosed business assets that would fall for distribution within the proceedings (see [123], [124] of the judgment).  

With respect to income and earning capacity, the wife would be able to secure employment at least at the level of her current net income.  With respect to the husband’s earning capacity, at present, that was less than that of the wife.  However, husband’s desire to achieve financial independence would be taken at face value, and he had taken steps in that direction by seeking qualifications and starting a consultancy that he was working to make profitable (see [127] of the judgment). 

Goodman v Gallant [1986] 1 All ER 311 applied; Pankhania v Chandegra (by her litigation friend, Ronald Andrew Eagle) [2012] All ER (D) 132 (Nov) considered.

(2) How those assets should be distributed to achieve the overall aim of fairness, having regard the statutory criteria set out in s 25 of the Matrimonial Causes Act 1973. 

Having considered each of the factors in the s 25 checklist and having kept at the forefront the need to ensure fairness, first, in circumstances where the husband had no beneficial interest in the former matrimonial home, a property adjustment order in favour of the wife in respect of the same could not be made. In the circumstances, as regards the wife’s housing need, the court was limited to varying the post-nuptial settlement to provide the wife and children with a licence terminable on six months’ notice. While that did not provide the wife and children with the degree of security that the court would wish, that was the limit of the court’s ability to intercede in the case as regards the housing needs of the wife and children. 

Second, it was an appropriate case to make a nominal spousal maintenance order. While the aim of both parties was financial independence, against that the current position of the wife was inherently uncertain in circumstances where, on the face of it, she and the children had the benefit of a bare licence to occupy their current property, and the wife was in the process of ceasing her employment and looking for a new job. The safety net of a nominal spousal maintenance order was justified. The term of the ‘safety net’ that comprised a nominal spousal maintenance order would be a period of six years. At the conclusion of that period, the wife would have had, within the context of her extensive qualifications and her earning capacity, a sufficient period of time to further develop her career and to secure housing provision, and the youngest child would be approaching his majority. 

Third, it was appropriate to order the husband to pay child periodical payments of £4,000 per annum per child. The order should continue for each child until they attained the age of 18 years or ceased their full-time tertiary education to first degree level, including a gap year, whichever shall be the later (see [130] of the judgment). 

The wife appeared in person.

James Ewins QC for the husband.

Stewart Leech QC for the ADB.

Karina Weller - Solicitor (NSW) (non-practising).

The wife’s application for a property adjustment order was dismissed, as the husband did not own a share of the beneficial interest in the former matrimonial home, but a post-nuptial settlement was varied to provide the wife and the children with a licence to occupy that property terminable on six months’ notice. The Family Court further made an order for nominal spousal maintenance and for child periodical payments in the sum of £4,000 per annum per child.

Background

In December 2015, the applicant wife and the first respondent husband divorced in Egypt. Under the terms of the Egyptian divorce agreement, the husband made financial provision for the wife including agreeing to let her remain in a property in London (Flat 117), in which she lived with their son (A). Although at the time of the Egyptian divorce proceedings the wife had issued an English divorce petition, no further steps were taken in relation to that petition once the deal in Egypt had been struck.

In March 2017, the wife applied to the English court for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984). She asserted that the husband was the legal and beneficial owner of three properties in central London and a yacht, currently moored in Egypt. In reply, the husband contended that, despite holding the legal title to each, he only had a one-third interest in two of the London properties (Flat 117 and Flat 507), which he owned in equal one-third shares with his two sisters, the third and fourth respondents. He denied having any beneficial interest in the third London property (the LM Flat) or the yacht, on the basis that he held the beneficial interest in each for his father, the second respondent. The second, third and fourth respondents sought declaratory relief in respect of their respective beneficial interests pursuant to s 14 of the Trusts of Land and Appointments of Trustees Act 1996 (the TOLATA 1996). In addition, the third and fourth respondent sought damages in the form of mesne profits arising as a result of the wife’s continuing occupation of Flat 117. In April 2018, the wife made an open offer of £3.8m to compromise her claims in the litigation. Included in that offer she sought the transfer to her of Flat 117. 

Issues and decisions

(1) Whether the respondents counterclaim under TOLATA 1996 s 14 should succeed.

The wife contended that all three sale contracts for the flats were shams. Alternatively that any sums advanced towards the acquisition of the properties and the yacht by the second respondent were either payments to the husband as of right or gifts (see [150], [151] of the judgment).

On the evidence, the second, third and fourth respondents had discharged the legal and evidential burden of proof which they bore in relation to the counterclaim, and the wife had failed to establish on the balance of probabilities that the transactions recorded in the documents were shams or otherwise fraudulent transactions manufactured by the husband (see [221] of the judgment). 

The contracts in relation to Flats 117 and 507 operated to establish beneficial ownership of those two properties by the three siblings in equal shares on the basis of a unilateral declaration of trust which operated to create: (i) a constructive trust on the basis of the common intention of the parties; and/or (ii) a resulting trust arising from their respective contributions to the purchase price (see [223] of the judgment). 

Having regard to the LM Flat, the transaction could be analysed as either a constructive trust arising as a result of a common intention between the two parties to the agreement, or as a resulting trust arising as a result of the second respondent’s funding of the property acquisition (see [228] of the judgment).

The yacht was a classic case of a resulting trust (see [229] of the judgment). 

Stack v Dowden [2007] All ER (D) 208 (Apr) applied; Bhura v Bhura [2014] All ER (D) 213 (Mar) applied; Marr v Collie (Bahamas) [2018] AC 631 applied; A v A [2007] Fam Law 791 considered; Laskar v Laskar [2008] All ER (D) 104 (Feb) considered; Burns v Financial Conduct Authority [2018] All ER (D) 14 (Jan) considered.

(2) Whether an order should be made in relation to the wife’s application under MFPA 1984, Pt 3. 

A’s needs were the first consideration. On the basis that the financial arrangements embodied in the Egyptian divorce agreement were not the subject of a formal order in the Egyptian divorce proceedings, A’s future security (and that of the wife as his primary carer) required an order to be made. The wife’s intention to remain living in the jurisdiction for the foreseeable future was sufficient connection with the jurisdiction to justify the making of an order (see [291] of the judgment). 

Accordingly, the terms of the wife’s occupation of Flat 117 would be extended until A was 18 years old or until he had completed his secondary education (see [296] of the judgment). 

In circumstances where the foreign order or agreement had been fair and likely to survive a Radmacher health check, as in the present case, it was not a legitimate use of the court’s powers to order a lump sum in a MFPA 1984, Pt 3 application to make good any deficiency in the calculation of future needs in order to address a shortfall which had arisen as a result of litigation costs. The wife had failed in her aspirations to establish that the documents giving rise to the wider family’s beneficial interests in the three London properties were forgeries or sham transactions manufactured by the husband for the purposes of the present litigation. She had invested her own capital in pursuing that case and, following established law, the husband could not be required to act as an insurer in respect of those litigation risks even if he had had the financial resources to do so (see [295] of the judgment). 

On the evidence, no order would be made in relation to the claims of the third and fourth respondents in relation to mesne profits or an occupation payment or charge (see [297] of the judgment).

Agbaje v Agbaje [2010] All ER (D) 92 (Mar) applied; Zimina v Zimin [2017] All ER (D) 57 (Oct) applied; Radmacher (formerly Granatino) v Granatino (pre-nuptial contract) [2010] All ER (D) 186 (Oct) considered.

Justin Warshaw QC and Joshua Viney (instructed by Simons Muirhead & Burton LLP) for the wife.

Damian Garrido QC and Fiona Hay (instructed by Abbey Law) for the husband.

Tim Amos QC and Michael Gleeson (instructed by Penningtons Manches LLP) for the second, third and fourth respondents.

Paul Mclachlan - Barrister.

On the basis that the financial arrangements embodied in an Egyptian divorce agreement were not the subject of a formal order in the Egyptian divorce proceedings, the future security of the parties’ child, A (and that of the applicant wife as his primary carer) required an order for financial relief to be made under the Matrimonial and Family Proceedings Act 1984, Pt 3. The Family Division so ruled, and, among other things, ordered that the wife’s occupation of a flat in London, that was part owned by the first respondent husband, be extended until A was 18 years old, or until he had completed his secondary education.