30 July 2018

Background

The appellant wife and respondent husband married in 1978 and were separated in 2015. In 2015, the wife petitioned for divorce pursuant to s 1(2)(b) of the Matrimonial Causes Act 1973 (MCA 1973). She alleged that the marriage had broken down irretrievably and that the husband had behaved in such a way that she could not reasonably be expected to live with him. In her amended petition she gave 27 individual examples that the husband had been moody and argumentative and had disparaged her in front of others. The husband contested the divorce, however, in his amended answer, he entered very few denials.

Prior to the hearing of the divorce, a case management hearing took place at which the recorder made two significant directions. The first was that there should be no witness other than the parties themselves. The second related to the conduct of the final hearing. The wife had suggested that a hearing of one half-day would suffice, whereas the husband suggested that three days were required. In the event, the recorder’s direction was for a hearing of one day. At the hearing, at the judge’s invitation the parties focused on only a very few of the 27 examples of behaviour. The judge concluded that the marriage had broken down, however, he dismissed the petition for reasons that included that all 27 of the pleaded examples of behaviour were at best flimsy, and that three of the examples on which the wife relied were not part of a consistent course of conduct on the part of the husband. On appeal, the Court of Appeal, Civil Division, dismissed the wife’s appeal.

In her further appeal to the Supreme Court, the wife’s principal ground of appeal (the principal ground) was that MCA 1973 s 1(2)(b) should be interpreted as requiring not that the behaviour of husband had been such that she could not reasonably be expected to live with him, but that the effect of it on her had been of that character. However, at the hearing the wife conceded that the principal ground went too far. As a result, the appeal rested on whether the trial judge had erred in his decision that the wife had failed to prove, within the meaning of MCA 1973 s 1(2)(b) that her husband ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. At the intervention of the intervener, Resolution, the court was also asked to consider a re-interpretation of MCA 1973 s 1(2)(b) along the lines of the principal ground.

Appeal dismissed.

Issues and decisions

(1) Whether the judge had erred in his decision that the wife had failed to prove, within the meaning of MCA 1973 s 1(2)(b), that her husband ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’.

Relevant considerations included whether the judge: (i) had been looking for behaviour objectively worse than what the law required; (ii) had considered the effect of the husband’s behaviour on the wife cumulatively; and (iii) had considered that the wife needed to establish that the alleged behaviour of the husband had caused the marriage to break down.

Applying established law, the correct approach to the interpretation of MCA 1973 s 1(2)(b) was that the inquiry had three stages: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent had or had not done; (ii) to assess the effect which the behaviour had had upon the particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it had occurred; and (iii) to make an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable (see [28] of the judgment).

Although the interpretation of MCA 1973 s 1(2)(b) remained correct, its application to the facts of an individual case was likely to change with the passage of the years (see [30] of the judgment).

‘Unreasonable behaviour’ had always been the family lawyer’s shorthand description for the content of MCA 1973 s 1(2)(b), however, that was wrong. The subsection required not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable (see [37] of the judgment).

There was no denying that the wife’s appeal had generated uneasy feelings: an uneasy feeling that the procedure conventionally adopted for the almost summary despatch of a defended suit for divorce had been inapt for a case which was said to depend on a remorseless course of authoritarian conduct and which had been acknowledged to appear unconvincing if analysed only in terms of a few individual incidents; an uneasy feeling about the judge’s finding that the three incidents which he had analysed had been isolated in circumstances in which he had not received oral evidence of so many other pleaded incidents; and an uneasy feeling about his finding that the wife had significantly exaggerated her entire case in circumstances in which the husband had not disputed much of what she had said. However, uneasy feelings were of no consequence in any appellate court. The judge’s advantages in reaching the relevant conclusions needed no rehearsal. The wife’s complaints about the judgment had already been analysed and dismissed by members of the Court of Appeal who had unrivalled authority in that sphere. In those circumstances, it was most unlikely to be appropriate for the Supreme Court to intervene (see [42-43] of the judgment).

The wife had to remain married to the husband for the time being (see [44] of the judgment).

Pheasant v Pheasant [1972] 1 All ER 587 applied; Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766 applied; Thurlow v Thurlow [1975] 2 All ER 979 applied; Stevens v Stevens [1979] 1 WLR 885 applied; Balraj v Balraj [1980] Lexis Citation 668 applied; Buffery v Buffery [1988] Fam Law 436 applied; Jamieson v Jamieson [1952] 1 All ER 875 considered; Katz v Katz [1972] 3 All ER 219 considered; Bannister v Bannister [1980] Lexis Citation 1231 considered; R (on the application of Quintavalle) v Secretary of State for Health [2003] 2 All ER 113 considered; Miller v Miller; McFarlane v McFarlane [2006] 3 All ER 1 considered.

(2) Whether MCA 1973 s 1(2)(b) should currently be interpreted as requiring not that the husband’s behaviour had been such that the wife could not reasonably be expected to live with him, but that the effect of it on her had been of that character.

In support of that point, Resolution argued that the State actively precipitated dispute by the continued existence of a law which in substantial part linked entitlement to divorce to the making of allegations by one spouse against the other.

The question posed by MCA 1973 s 1(2)(b) was more narrow than whether the wife could not reasonably be expected to live with the husband; it was whether the husband’s behaviour had been such that the wife could not reasonably be expected to do so. In determining whether a continuation of life with the husband could not reasonably be expected of the wife, it was therefore impossible to avoid focus on the husband’s behaviour, albeit assessed in the light of its effect on the wife (see [29] of the judgment).

Resolution’s suggested interpretation of MCA 1973 s 1(2)(b) was incorrect (see [29] of the judgment).

Per curiam: ‘Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances’ (see [45] of the judgment).

Decision of Court of Appeal, Civil Division  [2017] EWCA Civ 182 affirmed.

Philip J Marshall QC, Stephen Jarmain and Millicent Benson (Instructed by Payne Hicks Beach) for the wife.

Nigel Dyer QC and Hamish Dunlop (instructed by Hughes Paddison) for the husband.  

James Turner QC and Deepak Nagpal (instructed by Mills & Reeve LLP) for Resolution (by written submissions only).

Paul Mclachlan Barrister.

The advantages of the judge in reaching the relevant conclusions that the appellant wife had failed to prove, within the meaning of s 1(2)(b) of the Matrimonial Causes Act 1973, that her husband had behaved in such a way that she could not reasonably be expected to live with him, made it most unlikely to be appropriate for the appellate court to intervene. Accordingly, the Supreme Court dismissed the wife’s appeal and held that she had to remain married to the husband for the time being.

Background

The claimants were former members of the Egyptian government. They contended that a person, H, had been responsible for torture in the course of events which led to the downfall of the government of which they were members. In 2015, the Foreign and Commonwealth Office (the FCO) accepted the visit of H and other members of his delegation as a special mission. The claimants requested that he be arrested. The FCO and Crown Prosecution Service guidance stated that special mission members were immune from arrest. No action was taken against H and he left the United Kingdom at the mission’s end.

In the claimants’ application for judicial review, the Divisional Court held that customary international law required a receiving state to secure, for the duration of the visit, the privileges of personal inviolability and immunity from criminal proceedings (core immunities) for members of a special mission accepted as such by the receiving state and that that rule of customary international law was given effect by the common law. The claimants appealed.

Appeal dismissed.

Issues and decisions

(1) Whether, under customary international law, the receiving state had to grant, for the duration of the special mission’s visit, the core immunities in the same way that members of permanent missions were entitled to such immunities under the Vienna Convention on Diplomatic Relations 1961.

To establish a rule of customary international law, state practice supporting the core immunities and opinio juris had to be shown. To establish opinio juris, the state had to believe that there was an obligation to grant the core immunities to special missions accepted and recognised by them as such. The Divisional Court’s judgment showed that there was a very considerable amount of evidence of different types to satisfy those two elements and very little against. Overall, the claimants could not demonstrate that the conclusions of the Divisional Court should not stand. Further, additional evidence which had become available since the date of its judgment had only served to reinforce its conclusion (see [78] of the judgment).

Special missions could not be expected to perform their role without the functional protection afforded by the core immunities. No state had taken action or adopted a practice inconsistent with the recognition of such immunities. No state had asserted that they did not exist. There was no doubt that an international court would find that there was a rule of customary international law to that effect. The Divisional Court had been right in its conclusion and it would be upheld (see [79] of the judgment).

With respect to the claimants’ argument, that that the evidence of a practice of granting core immunities to recognised special missions was not sufficiently representative, the concern was with affected states. It was not necessary to show acceptance of the rule by states which were simply not concerned with special missions because they did not receive or recognise them and did not send their own elsewhere to carry out tasks in other states. The rule was not one which imposed burdens on other states which did not wish to accept special missions. That was a feature which could be taken into account when determining whether a practice was sufficiently representative to give rise to a rule of customary international law (see [82], [83] of the judgment).

As to the claimants’ argument that, special missions immunity would not apply where the alleged acts were acts of torture, a special mission’s immunity had been demonstrated to exist in customary international law, at least at the present time, which was not subject to any qualification for any international crimes. In short, there was no conflict between the customary rule of immunity for members of a special mission and the prohibition of torture as a norm of jus cogens. The fact that the alleged acts involved a breach of jus cogens did not confer on a court a jurisdiction which it did not otherwise possess (see [107], [108] of the judgment).

Further, the claimants’ submission, that the immunity should be limited to official acts, would also be rejected, since that would involve an invasion of the immunity to determine whether or not the act was an official act. The evidence of state practice and opinio juris showed that the relevant immunity was wider than that (see [110] of the judgment).

Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening); Mitchell v Al-Dali [2007] 1 All ER 113 applied; Bat v Investigating Judge of the German Federal Court [2011] All ER (D) 293 (Jul) applied.

(2) Whether such immunities were recognised by the common law.

The presumption was that a rule of customary international law would be taken to shape the common law, unless there was some positive reason based on constitutional principle, statute law or common law that it should not. The presumption reflected the policy of the common law that it should be in alignment with the common customary law applicable between nations.

The position was different from that in relation to unincorporated treaty obligations, which did not, in general, alter domestic law. In part, since the making of treaties was a matter for the executive, that reflected the principle that the Crown had no power to alter domestic law by its unilateral action. The common law was more receptive to the adoption of rules of customary international law because of the very demanding nature of the test to establish whether a rule of customary international law existed. That was not something that the Crown could achieve by its own unilateral action by simple agreement with one other state.

Accordingly, in the case of a rule of customary international law, the presumption was that it would be treated as incorporated into the common law, unless there was some reason of constitutional principle why it should not be. In the case of an obligation in an unincorporated treaty, the relevant rule was the opposite of that, namely that it would not be recognised in the common law (see [116] of the judgment).

The claimants’ submissions failed to identify any constitutional principle which could override the presumption. On proper legal analysis, there was no conflict between the United Kingdom’s obligations under the United Nations Convention Against Torture and its obligations under the rule of customary international law at issue in the case. It was in accord with constitutional principle in the present case that the courts should act to ensure that the United Kingdom abided by its obligations under international law by recognising that rule of customary international law as a norm forming part of the common law (see [133] of the judgment).

R v Jones; Ayliffe v DPP; Swain v DPP [2006] 2 All ER 741 applied; R (on the application of Miller) v Secretary of State for Exiting the European Union; Re Agnew and others’ application for judicial review (reference by the Attorney General for Northern Ireland); Re McCord’s application for judicial review (reference by the Court of Appeal (Northern Ireland)) [2017] 1 All ER 593 applied; Nulyarimma v Thompson; Buzzacott v Hill (1999) 8 BHRC 135 considered; Keyu v Secretary of State for Foreign and Commonwealth Affairs [2016] 4 All ER 794 considered.

Decision of Divisional Court  [2016] All ER (D) 32 (Aug) affirmed.

Sudhanshu Swaroop QC, Tom Hickman and Philippa Webb (instructed by Irvine Thanvi Natas) for the claimants.

Karen Steyn QC, Jessica Wells, Guglielmo Verdirame (instructed by the Government Legal Department) for the first respondent.

Paul Rogers and Katarina Sydow (instructed by the Crown Prosecution Service) for the second respondent.

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

The Divisional Court had been correct to hold that a rule of customary international law had been identified which obliged a state to grant to the members of a special mission, which the state accepted and recognised as such, immunity from arrest or detention and from criminal proceedings for the duration of the special mission’s visit. The Court of Appeal, Civil Division, in dismissing the claimants’ appeal, further held that, in accordance with the presumption that customary international law should shape the common law, such immunities were recognised by the common law.

Background

In October 2016, the defendant was convicted of attempted murder. The particulars of the offence were that while the victim was on the telephone waiting for roadside assistance for his car that had broken down, the defendant attacked him with a tyre lever. The defendant struck the victim a number of times around the head resulting in serious injuries. The reason for the attack, which was never challenged by the prosecution during the trial, was that the defendant thought that the victim was a terrorist who was making enquiries as to how to detonate a bomb that he had in his vehicle. The defendant was sentenced, pursuant to s 226A of the Criminal Justice Act 2003, to an extended sentence of 19 years’ imprisonment, comprising a custodial term of 14 years with 5 years on licence.

The defendant appealed against conviction on the ground that the judge had been wrong to withdraw self-defence from the jury. The judge had reasoned that, although the defence was available even if the defendant had been mistaken as to whether it was necessary to use force to defend himself, pursuant to s 76(4)(b) of the Criminal Justice and Immigration Act 2008 (the CJIA 2008), under the CJIA 2008 s 76(5), a defendant was not entitled to rely on any mistaken belief attributable to intoxication that was voluntarily induced. In the present case, there was no evidence that the defendant had taken any drugs or alcohol on the day of the offence. However, he had a history of substance abuse and had been drinking heavily in the days before, to the extent that expert evidence concluded that he had been suffering from a disease of the mind induced by intoxicants. On appeal, it was argued by the defendant, among other things, that his mistaken belief was not attributable to voluntary intoxication because there was no evidence that he was intoxicated by drink or drugs. Further, there had long been recognised a distinction between intoxication (on which he was not entitled to rely) and a disease of the mind induced by intoxicants (in respect of which he was not deprived of a defence).

Appeal dismissed.

Issues and decisions

Whether the conviction was unsafe because the judge had been wrong to withdraw self-defence from the jury.

The common law, replicated in the CJIA 2008, established that the defence of self-defence had two limbs. The first was whether the defendant genuinely believed that it was necessary to use force to defend himself. The second was whether the nature and degree of force used was reasonable in the circumstances. Once self-defence had been raised as an issue, it was for the prosecution to disprove it to the criminal standard (see [36] of the judgment).

A defendant who was suffering the immediate effects of alcohol or drugs in the system was, in truth, not in a different position to a defendant who had triggered or precipitated an immediate psychotic illness as a consequence of proximate ingestion of or drugs in the system whether or not they remained present at the time of the offence (see [56] of the judgment).

In the present case, it had been agreed that the defendant’s episode of paranoia which led him to mistake the innocent victim as a terrorist was a direct result of his earlier drink and drug-taking in the previous days and weeks. In the circumstances, the present state of the law - that DPP v Majewski ([1976] 2 All ER 142) applied to offences committed by persons who were then voluntarily intoxicated, but not to those suffering mental illness - had not applied to the defendant, given that his paranoia was the direct and proximate result of his immediately prior drink and drug-taking. Had the House of Lords in Majewski been presented with the same medical evidence and facts as in the present case, it would have had no difficulty in applying the general common law principle with equal force to the case and held that the defendant had no defence because his state of mind had been brought about by his earlier voluntary intoxication. That was an application of Majewski, rather than an extension of that decision or, at the highest, a most incremental extension (see [57] of the judgment).

The words ‘attributable to intoxication’ in the CJIA 2008 s 76(5) were broad enough to encompass both: (i) a mistaken state of mind as a result of being drunk or intoxicated at the time; and (ii) a mistaken state of mind immediately and proximately consequent on earlier drink or drug-taking, so that even though the person concerned was not drunk or intoxicated at the time, the short-term effects could be shown to have triggered subsequent episodes of, for example, paranoia. That conclusion did not extend to long-term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse. Accordingly, the judge had been right that the phrase ‘attributable to intoxication’ was not confined to cases in which alcohol or drugs were still present in a defendant’s system (see [60] of the judgment).

In the alternative, the judge had been entitled to withdraw the case from the jury because of the second limb of the defence in CJIA 2008 s 76. Any objective consideration of the facts revealed no reasonable basis for the response of the defendant. There was no basis on which the jury could have concluded that the extent of force used was reasonable (see [62-64] of the judgment).

R v Coley; R v McGhee; R v Harris [2013] All ER (D) 06 (Apr) distinguished; DPP v Majewski [1976] 2 All ER 142 applied; R v Oye [2014] 1 All ER 902 applied; R v Williams (Gladstone) [1987] 3 All ER 411 considered; Beckford v R [1987] 3 All ER 425 considered; Dewar v Director of Public Prosecutions [2010] All ER (D) 83 (Jan) considered; Unsworth v Director of Public Prosecutions [2010] EWHC 3037 (Admin) considered; Palmer v R [1971] 1 All ER 1077 considered; R v Oatridge 94 Cr App Rep 367 considered; R v Yaman [2012] All ER (D) 147 (May) considered; R v Lipman [1969] 3 All ER 410 considered; R v O’Grady [1987] 3 All ER 420 considered; R v Hatton [2005] All ER (D) 308 (Oct) considered; DPP v Beard [1920] All ER Rep 21 considered.

Abbas Lakha QC and Trevor Siddle for the defendant.

John McGuinness QC and Louise Oakley for the Crown.

Paul Mclachlan Barrister.

The judge had not erred in withdrawing the defence of self-defence from the jury, where the defendant had been suffering from drug induced psychosis, as the words ‘attributable to intoxication’ in s 76(5) of the Criminal Justice and Immigration Act 2008 were broad enough to encompass a mistaken state of mind immediately and proximately consequent on earlier drink or drug-taking, so that, even though the person concerned was not drunk or intoxicated at the time, the short-term effects could be shown to have triggered subsequent episodes of, for example, paranoia. Accordingly, the Court of Appeal, Criminal Division, dismissed the defendant’s appeal against conviction for attempted murder.

Background

The tribunal previously declared that the respondents’ regime for the collection of bulk communications data (BCD), under s 94 of the Telecommunications Act 1984 (the TA 1984), was not in accordance with the law under art 8(2) of the European Convention on Human Rights until 4 November 2015, but had been in accordance with the law under art 8(2) since that date (see [2016] All ER (D) 147 (Oct)). It addressed the issue of compatibility of the collection, retention and use of bulk communications data with EU law in a second judgment, with a postscript (see [2017] All ER (D) 23 (Sep)) and requested a preliminary ruling by the Court of Justice of the European Union on the issue. Following those previous decisions, various issues remained outstanding.

Issues and decisions

(1) Whether there had been unlawful delegation of the statutory powers of the first respondent Secretary of State for Foreign and Commonwealth Affairs (the SSFCA), under the TA 1984 s 94, and whether the directions given by the SSFCA, under the TA 1984 s 94 had complied with the terms of his statutory duty or were in accordance with the law.

In most cases, the submissions made to the SSFCA, seeking a number of directions under s 94(1), did not support the proposition that it could be necessary in the interests of national security, let alone proportionate, to require communications service providers (CSPs) to make available to Government Communications Headquarters (GCHQ) the entirety of the communications data generated by its networks. To the contrary, in most cases where a general direction had been made, it had been made clear in the submission that there was only an operational requirement for the provision of data in respect of certain classes of communication, albeit that the data to be required in the future might vary in line with intelligence requirements. Where, in some submissions, the reason for making a general direction had been addressed, the only reason advanced was to provide flexibility for GCHQ to select whatever subsets of data it might consider necessary. There had been no suggestion in such written submissions that it was necessary in the interests of national security for all communications data held by the CSP to be made available to GCHQ. Those submissions expressly noted that it would be GCHQ, not the SSFCA, which would determine the scope of the sub-sets of data required to be provided by the CSP (see [44] of the judgment).

In cases in which the submission had sought a direction in order to enable GCHQ to obtain data relating to particular classes of communication (whether or not the submission specified those classes), but the SSFCA had made a general direction which applied to all communications through the networks operated by the CSP, there had been an unlawful delegation of the power conferred by s 94(1). However, the SSFCA had, from 2010, imposed a requirement that any variation in the scope of data to be provided under a direction required his approval and, from 2014, had been supplied with regular six monthly reviews setting out, in detail, the scope and justification for the data being provided under s 94 directions. Accordingly, by 4 November 2015, there had been, in substance, no delegation of power from the SSFCA to GCHQ. The effect of the requirements imposed from 2014 onwards had been that it was the SSFCA, not GCHQ, who had decided the scope of the continuing requirements to be imposed on a CSP under s 94(1) (see [47] of the judgment).

Accordingly, most of the relevant directions made between 29 November 2001 and 7 November 2012 had not been lawfully made under s 94. In a closed judgment, the relevant directions which had remained in force on 4 November 2015 were listed and reasons for determining whether or not each of those directions had complied with relevant legal principles were set out in summary form (see [53] of the judgment).

However, on the basis of the evidence, the acquisition of BCD under lawful directions made under s 94 by the SSFCA on 14 October 2016 had been, and remained, necessary and proportionate (see [57] of the judgment).

Carltona Ltd v Works Comrs [1943] 2 All ER 560 applied; R (on the application of Sarkandi and others) v Secretary of State for Foreign and Commonwealth Affairs [2016] 3 All ER 837 applied.

(2) Whether that decision had any consequences on the declaration given in the first judgment.

In the light of the decision on the first issue, the words ‘but had been in accordance with the law under art 8(2) since that date’ in the declaration could not stand. The judgment fell to be reopened by virtue of the consideration of the directions, and the reconsideration of the matters the subject of the first issue, and it would be concluded that many of the directions, which had continued after 4 November 2015 until 14 October 2016, had been unlawful (see [58] of the judgment).

However, no declaration would be made, nor any further relief granted, in respect of communications data obtained by GCHQ under those directions which had been unlawfully made whether prior or subsequent to November 2015. First, the effect of the conclusions on the first issue was that a number of directions made by the SSFCA had not been lawfully made, but that, in substance and effect, from about 2014 there had been no unlawful delegation of power, nor had there been a disproportionate use of such directions. The evidence was that the communications data obtained by GCHQ under such directions had been within the proper scope of the TA 1984 s 94(1) and the acquisition had been both necessary and proportionate. Second, the potential effect on third parties, the CSPs, who had had no reason to believe that the directions, compliance with which had been required, were other than lawful. Third, which directions had been lawful and which unlawful could not be identified in open, and hence, even if otherwise minded to do so, the tribunal would not be in a position to quash some and not others (see [59], [60] of the judgment).

 The directions by the SSFCA identified in the closed schedule had not been in accordance with the law, but no further order would be made (see [113] of the judgment).

(3) Whether, on the hypothesis that there had been sharing of BCD or bulk personal datasets (BPD) with foreign agencies, law enforcement agencies (LEAs) and contractors or researchers (industry partners), that would be lawful, under the Convention and EU law.

In the circumstances considered in open and in closed, the regime in respect of sharing BCD and BPD with foreign agencies had been compliant with art 8. As for the position under EU law, in relation to transfer of intelligence out of the EU to foreign agencies, that obviously had to await the outcome of the reference to the CJEU (see [71], [72] of the judgment).

If there had been sharing of BCD or BPD with LEAs, such activity would fall within the oversight given by the Investigatory Powers Commissioner’s Office since 2015, and that there had been, since November 2015, sufficient disclosure of the safeguards under which it would take place to satisfy the requirements of foreseeability (see [76] of the judgment).

With respect to industry partners, an inadequate appreciation of the risks involved to the privacy rights of those whose data had been harvested and stored had been demonstrated. That did not represent a systemic failure such as to render either that harvesting or storage, or the oversight of it, unlawful. Further, the approach to the use of contractors on site did not render the use and acquisition of BCD/BPD unlawful (see [84], [85] of the judgment).

Accordingly, the regime in respect of sharing of BCD/BPD with foreign agencies, law enforcement agencies and industry partners complied with art 8. Further, in relation to GCHQ’s avowed sharing of BCD/BPD with industry partners, such sharing had also been compatible with art 8 (see [113] of the judgment).

(4) Whether the steps taken by way of collection, retention or use of BCD or BPD complied with the requirements of proportionality.

The analysis in relation to the TA 1984 s 94 showed that, whereas GCHQ had been fully mindful of its obligations as to bearing in mind both necessity and proportionality in obtaining data pursuant to s 94 directions, the directions themselves were in many cases not so limited. That was a factor which indicated that at the stage of acquisition of BCD, GCHQ had had its obligations well in mind (see [91] of the judgment).

Consideration of proportionality was inbuilt into the agencies’ systems and there was regular consideration, at both the stage of acquisition and of access, of whether there were any practical alternative measures that could be taken (see [93] of the judgment).  

Accordingly, the steps taken by way of collection, retention and use of BCD or BPD by the respondents complied with the requirements of proportionality, pursuant to art 8 and EU law (see [113] of the judgment).

R (on the application of Lumsdon) v Legal Services Board [2016] 1 All ER 391 applied.

(5) Whether the first judgment should be reopened, in so far as it had concluded that the oversight by the Intelligence Services Commissioner (ISCom) and the Interception of Communications Commissioner (IOCC) had been adequate in respect of BPD subsequent to March 2015 and BCD subsequent to 4 November 2015, in particular with respect to: (i) the s 94 directions; (ii) sharing with industry partners; (iii) the IS Comm’s method of oversight; and (iv) criticisms of the oversight by the previous commissioners which could be spelt out of the recent correspondence with the Investigatory Powers Commissioner’s Office.

As a result of the conclusions on the first issue, the decision now was that, in relation to many of the directions made by the SSFCA, pursuant to s 94, prior to October 2016, they had been unlawful. The result was that, so far as BCD was concerned, the period in respect of which the BCD system had been lawful was substantially deferred from November 2015 to October 2016. Therefore, to that extent, on the one hand the first judgment, on those grounds, had thereby been reopened and, on the other hand, the period in which the claimant could seek to reopen the first judgment yet further was of very short duration (see [97] of the judgment).

There had been a system of oversight by independent commissioners in place throughout the relevant period and the commissioners had been specifically tasked to consider the use of bulk datasets (see [102] of the judgment).  

With respect to the s 94 directions, although the GCHQ witness had not given a clear description of what documents had been shown to the IOCC, it appeared that all relevant documents had been made available to him and that he had reached correct conclusions. Given that the IOCC’s conclusion had been correct, and had been complied with, and once the directions had been sought and granted in their new form, the system had become lawful as from October 2016, there was no inadequacy of supervision by reference to a July 2016 review (see [106] of the judgment).

With respect to sharing with industry partners, whereas it was apparent that the commissioners had known of the use of contractors in-house, they had not known precisely how many such contractors had been so employed or in what positions. Although the use of such in-house contractors had raised a risk, the absence of such precise knowledge did not detract from the adequacy of their oversight, which had been in place and, so far as checking conduct by contractors as well as employees, had plainly been exercised. However, what was significant was that the commissioners had not known about sharing with industry partners by GCHQ. That plainly formed a minimal part of the operation of BPD/BCD and an even more miniscule part of the work of the agencies subject to the commissioners’ oversight. That was a failing in the operation of oversight and in the duty of GCHQ to bring it to the commissioners’ attention. However, given the totality of the work done both by the commissioners and by the agencies, that did not amount to or illustrate a systemic failure (see [107] of the judgment).

With respect to the IS Comm’s method of oversight, although he had not had a team of inspectors or obtained independent technical advice, there was no doubt that he had carried out supervision, with diligence and regularity, and it could be seen by simply reading his reports how detailed he had been in his consideration, and how many detailed and technical points he had explored with the agencies. The fact that the new supervision regime had the benefit of a team of experts might be an improvement, though it was not tested, but it did not evidence prior inadequacy. In any event, the argument, if there had been any substance to it, could have been made prior to the first judgment (see [109] of the judgment).  

With respect to the criticisms of the oversight by the previous commissioners, there was no doubt that, just as the previous commissioners had pointed out errors by the agencies, and just as the agencies themselves had produced some incorrect evidence, there had been continuing mistakes and lacunae, some of which had been picked up, but some of which no doubt had not been picked up over the period of years. However, there was no basis for reconsideration of the conclusions reached as to adequacy of oversight in the first judgment. There was and had been a genuine determination both on the part of the commissioners and the agencies themselves to get things right (see [111] of the judgment).

Accordingly, the application to set aside the conclusions in the first judgment in relation to the commissioners would be dismissed and, save in the respect consequent upon the conclusion in relation to the first and second issues, the application to set aside the conclusions in the first judgment would be dismissed (see [112], [113] of the judgment).

Thomas de la Mare QC, Ben Jaffey QC and Daniel Cashman (instructed by Bhatt Murphy Solicitors) for the claimant.

James Eadie QC, Andrew O’Connor QC and Richard O’Brien (instructed by the Government Legal Department) for the respondents.

Jonathon Glasson QC (instructed by Government Legal Department) as counsel to the tribunal.

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

Directions under s 94 of the Telecommunications Act 1984 given by the first respondent identified in the closed schedule were not in accordance with the law, but no further order would be made and, save in that respect, the application to set aside the conclusions in a previous judgment was dismissed. The Investigatory Powers Tribunal further concluded that the regime in respect of sharing, collection, retention and use of bulk communications data/bulk personal datasets complied with art 8 of the European Convention on Human Rights.

Background

In October 2010, B wished to gamble at the first defendant London Playboy Club (the club). He applied for a cheque cashing facility of up to £800,000 (the facility). The club’s policy was for gamblers like B to require a credit reference from his bankers for twice the amount of the facility. The club’s practice was to arrange for an associated company (Burlington) to do so without disclosing the purpose of the inquiry or the fact that the reference was required for the benefit of another company.

B completed a written application for the facility, naming his bankers as the claimant bank (BNL). Burlington made an inquiry, and BNL confirmed that B had an account with it and that he was trustworthy up to £1,600,000 in any one week. Relying on the reference, the club granted the cheque cashing facility and increased it to £1.25m. B played at the club and drew cheques of £1.25m (the cheques). His winnings came to £427,400, which the club paid to him.

B went to the Lebanon and did not return. The cheques were returned unpaid. The club suffered a loss of £802,940. The club commenced proceedings against BNL.

It was common ground that BNL had not had a reasonable basis for its reference. It had held no account for B until two days after the reference had been sent, when an account had been opened in his name which had had a nil balance until it was closed in December 2010.

It was also common ground that, of the three claimants, the club was the only party with an interest, neither of the others having suffered any loss. At first instance, the court held that BNL had owed a duty of care in relation to its reference to the club (see [2014] All ER (D) 288 (Jul)). The Court of Appeal disagreed (see [2016] All ER (D) 147 (May)), holding that the only duty had been to Burlington, to whom the reference had been addressed.

Appeal dismissed.

Issues and decisions

Whether the bank was liable to the club. The club submitted that the relationship between BNI and the club was ‘equivalent to contract’ because, in contract, the club would have been entitled to declare itself and assume the benefit of the contract.

The case of Hedley Byrne & Co Ltd v Heller & Partners Ltd ([1963] 2 All ER 575) allowed the recovery of a purely economic loss in negligence where the existence of a special relationship between claimant and defendant made that appropriate. While the principle had developed since then, the courts had resisted expanding the scope of liability concerning the person or category of persons to whom the duty was owed. The defendant’s voluntary assumption of responsibility remained the foundation of that area of law. It was fundamental to that way of analysing the duty that the defendant was assuming a responsibility to an identifiable (although not necessarily identified) person or group of persons, and not to the world at large or to a wholly indeterminate group (see [6], [7] of the judgment).

The defendant’s knowledge of the transaction in respect of which the statement had been made was potentially relevant for, among other things, identifying some specific person or group of persons to whom he could be said to have assumed responsibility. The significance of that would vary according to what was known about the person or group expected to rely on the statement (see [10] of the judgment).

In the ordinary course, where a statement was relied upon by Y, to whom X had passed it on, the representor owed no duty to Y unless he had known that the statement had been likely to be communicated to and relied upon by Y. It also had to be part of the statement’s known purpose that it ought to be communicated and relied upon by Y, if the representor was to be taken to assume responsibility to Y (see [11] of the judgment).

The rule of English law that an undisclosed principal could declare himself and enter upon a contract was an anomalous legacy of eighteenth and nineteenth century jurisprudence, which survived on account of its antiquity rather than its coherence (see [12] of the judgment).

First, the appellants’ argument assumed that, because a relationship ‘equivalent to contract’ was generally sufficiently proximate to found a duty of care, it had to follow that the legal incidents of a contractual relationship were imported into it. That was a non-sequitur. The expression ‘equivalent to contract’ served: (i) as an allegory of proximity, to describe a case where a service was performed for a person pursuant to a relationship which would be contractual if there were consideration passing from that person; and (ii) as an explanation of why it was appropriate to award a purely economic loss as damages for negligence in the course of such a relationship. It did not follow from the fact that a non-contractual relationship between two parties was as proximate as a contractual relationship, that it was legally the same as a contractual relationship or involved all of the same legal incidents (see [13] of the judgment).

Second, the relationship between a person dealing with another and the latter’s undisclosed principal was not at all analogous to the kind of relationship that would give rise to a duty of case. Such a relation was, by definition, not proximate. Nor was it in any relevant sense voluntary or consensual so as to give rise to an assumption of responsibility. It had none of the factors necessary to bring the claimant into proximity with the defendant (see [14] of the judgment).

Third, the appellant’s submission would require one to import into the law of tort just one aspect of the law relating to undisclosed principals. However, the law in that area was a complex bundle of interrelated rights and liabilities, most of which were entirely inapposite to the law of tort (see [15] of the judgment).

It was impossible to feel much sympathy for BNL, given the circumstances in which it had come to give a favourable credit reference for someone with whom it appeared to have had no relevant dealings. However, BNL had had no reason to suppose that Burlington had been acting for someone else, and had known nothing of the club. In the circumstances, it was plain that it had not voluntarily assumed any responsibility to the club. It could well have been, since it had known nothing of Burlington either, BNL had been indifferent to whom it had been dealing with. However, the fact that a representor might have been equally willing to assume a duty to someone else did not mean that he could be treated as if he had done so (see [16] of the judgment).

Nocton v Lord Ashburton [1914-15] All ER Rep 45 considered; Candler v Crane Christmas & Co [1951] 1 All ER 426 considered; Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575 considered; Caparo Industries plc v Dickman [1990] 1 All ER 568 considered; Smith v Eric S Bush (a firm), Harris v Wyre Forest District Council [1989] 2 All ER 514 considered; Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 1 All ER 213 considered; Spring v Guardian Assurance plc [1994] 3 All ER 129 considered; Henderson v Merrett Syndicates [1994] 3 All ER 506 considered; NRAM Ltd (formerly NRAM plc) v Steel and another (Scotland) [2018] All ER (D) 148 (Feb) considered.

Decision ofCourt of Appeal, Civil Division [2016] All ER (D) 147 (May) affirmed.

Simon Salzedo QC and Fred Hobson (instructed by Simkins LLP) for the appellants.

Jeff Chapman QC and Andrew de Mestre (instructed by Bird & Bird LLP) for the club.

Toby Frost Barrister.

The appellant bank’s appeal failed, in a case involving the first claimant London Playboy Club’s alleged duty of care in giving a financial reference about an individual. The Supreme Court held that, where the bank had given the reference to another company acting for the club, there could not be an assumption of responsibility to the bank. The relationship between the bank and the club had not been analogous to contract, and the bank was not liable to the club.

Background

The defendants faced charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The Court of Appeal, Criminal Division, held that the defendants were right in their contention that the conditions set out in s 90ZA(4) of the Representation of the People Act 1983 (the RPA 1983) applied to notional expenditure within s 90C. The prosecution appealed and the Court of Appeal certified a point of law of general public importance.

Appeal allowed.

Issues and decisions

Whether property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount, as identified in the RPA 1983 s 90C(1)(a), only fell to be declared as election expenses if they had been authorised by the candidate, his election agent or someone authorised by either or both of them.

The RPA 1983 s 90C asked, by s 90C(1)(a) and (b), three questions about the expenditure it was considering. If those questions were answered ‘yes’, then, by s 90C(2), it stipulated that the expenditure shall be treated as incurred by the candidate for the purposes of the RPA 1983. That was a deeming provision. If the conditions were satisfied, the notional expenditure became, by statute, the same as if it had been actually incurred by the candidate, even though it had not actually been incurred by him. The three questions could be simplified by expressing them in terms of services, but of course the same applied to goods, property or facilities. The questions posed by s 90C(1)(a) and (b) were: (i) were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value; (ii) were they made use of by or on behalf of the candidate; and (iii) if the services had actually been paid for (expenses actually incurred) by or on behalf of the candidate, would those expenses be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the RPA 1983) (see [18] of the judgment).

 There was no room in that sequence of conditions or questions for an additional requirement that the provision of the services had to have been authorised by the candidate or his election agent, or by someone authorised by either of them. The test was a different one from that in s 90ZA(4) for expenses actually incurred. The test was use, by or on behalf of the candidate (see [19] of the judgment).

 Accordingly, the question certified by the Court of Appeal had to receive the answer ‘no’ (see [30] of the judgment).

Timothy Straker QC, John McGuinness QC and Tom Little QC (instructed by the Crown Prosecution Service) for the Crown.

Richard Price QC, David Mason QC and Francis Hoar (instructed by Manleys Solicitors Ltd) for the first respondent.

Patrick Gibbs QC (instructed by Manleys Solicitors Ltd) for the second respondent.

Clare Montgomery QC, Stephen Ferguson and Sarah Hannett (instructed by Blackfords LLP) for the third respondent.

Richard Gordon QC and Gerard Rothschild (instructed by Fieldfisher LLP) for the Electoral Commission, as intervener.

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

Property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount, as identified in s 90C(1)(a) of the Representation of the People Act 1983, did not only fall to be declared as election expenses if they had been authorised by the candidate, his election agent or someone authorised by either or both of them. Accordingly, the Supreme Court allowed the prosecution’s appeal against the decision of the Court of Appeal, Criminal Division.

Background

The administrators of Lehman Brothers International (Europe) applied for the sanction of a scheme of arrangement in respect of the company.

Application allowed.

Issues and decisions

Whether the provisions of Pt 26 of the Companies Act 2006 (CA 2006) had been complied with. In that regard, the most important issue was whether the scheme had been approved by the requisite statutory majorities at class meetings properly constituted. Among other things, the court considered the objections by certain creditors. In particular, consideration was given to a lock-up agreement and a commitment by Wentworth and the Senior Creditor Group (the SCG) under it to elect not to pursue certification of their claims for higher interest, and the arrangements between Wentworth and the SCG for a consent fee payable to the latter.

In the present case, the class composition, which formed the basis for the class meetings the court had directed, was appropriate, at least for the purpose of the first stage of enquiry and, therefore, for the purpose of being satisfied as to jurisdiction (see [11] of the judgment).

On the basis of the evidence of the chairman of each class meeting,  the meetings held pursuant to the court’s order of 11 May 2018 had been duly held on 5 June 2018 in accordance with the directions given, they had been sufficiently well attended, and  the requisite statutory majorities, both in number and value, had been obtained (see [12] of the judgment).

Accordingly, the statutory preconditions for jurisdiction under Pt 26 and for the sanction of the court of the scheme  had been satisfied (see [13] of the judgment).

The second stage required the court to consider whether each relevant class had been fairly represented by those who had attended the meeting, and to address whether the majorities had expressed a class view, or whether it appeared that, instead, the majority voted to promote, not the interest of the class, but some interests of their own adverse to the class (see [14] of the judgment).

On the facts, the results of the meetings reflect the interests of the several classes and not simply or even predominantly the coercive power of the self interested majority (see [25] of the judgment).

Those factors were relevant also to the third stage, at which the court had to consider the overall fairness of the scheme (see [26] of the judgment).

Having reviewed all matters, the adjudication process and the scheme taken together were not so unfair as to require or persuade the court to withhold sanction (see [30] of the judgment).

Accordingly, the court should not refuse sanction to that which the majority of creditors had approved, in circumstances where the scheme was such that an intelligent and honest man, a member of the class concerned and acting in respect of his interests, might reasonably approve (see [31] of the judgment).

There was little in the scheme to cause real difficulty. There was no doubt that Lehman Brothers International (Europe) was a company within CA 2006 s 895(2). The court had, in numerous cases, addressed the application or not of the Recast Judgments Regulation, and its interplay with EU insolvency legislation, and had reached an accommodation, if it did apply, as to the recognition of its jurisdiction to approve the scheme (see [33] of the judgment).

 Further, it was not a necessary prerequisite that the court should be satisfied that in each and every jurisdiction in which the scheme might have or be sought to be applied that it would be recognised. However, the court noted the reassurance that, in the US, where it might be particularly important that it should be recognised and enforced, that it was intended that there should be an application under Ch 15 (see [34] of the judgment).

Accordingly, the scheme would be sanctioned (see [35] of the judgment).

Hawk Insurance Co Ltd, Re [2001] All ER (D) 289 (Feb) considered; Telewest Communications plc, Re; Re Telewest Finance (Jersey) Ltd [2005] 1 BCLC 772 considered.

Per curiam: ‘In view of the significance of this, and in the context of an administration which has been in being for nearly a decade and has involved multiple proceedings of very considerable value and complexity, which in many cases are still ongoing, I have felt it right to give short reasons now and to hand down a full judgment hereafter in elaboration … What I say now, therefore, should be read subject to that more developed and comprehensive judgment to come’ (see [3], [4] of the judgment).

David Allison QC and Adam Al-Attar for Wentworth.

William Trower QC, Daniel Bayfield QC and Ryan Perkins for the administrators.

Peter Arden QC and Louise Hutton for LB Holdings Intermediate 2 Ltd (in administration) and its administrators.

Robin Dicker QC and Richard Fisher for the SCG.

Carla Dougan-Bacchus Barrister.

In view of the significance of the proceedings, the Companies Court gave short reasons for sanctioning a scheme of arrangement in respect of Lehman Brothers International (Europe), which was in administration for almost a decade, with the full judgment to follow at a later date.