Permission has been granted by the Supreme Court to appeal against a decision of the Court of Appeal rejecting a claim that the Social Security (Disability Living Allowance) Regulations 1991, which operates so as to automatically suspend disability living allowance after a child has been in hospital for 84 days, breaches both article 8 and 14 ECHR.  The provision in the 1991 regulations suspending disability living allowance affects around 500 of the most severely disabled children in the country each year.  The evidence is clear that with respect to such children the caring and financial burden placed on their families increases when their child is in hospital.  On behalf of the father of one such child (who sadly died during the course of these proceedings) it is argued that the Court of Appeal was wrong to have found that the discriminatory effects of the 1991 regulations were justified, the Appellant contending that they were “manifestly without reasonable foundation” and contrary to article 14 ECHR.  It is also contended that the Court of Appeal was wrong when, in considering whether the impugned measure was justified, not to have given weight to the United Nations Convention on the Rights of the Child and the United Nations convention on the Rights of Persons with Disabilities.

The Supreme Court will also consider whether article 8 ECHR is engaged in circumstances where a state benefit is withdrawn and in doing so whether it should follow the approach of the European Court of Human Rights in McDonald v UK rather than its own approach in the same case, R(McDonald) v Kensington and Chelsea RLBC.  Furthermore the Supreme Court will consider whether the Court of Appeal was wrong not to have found the 1991 regulations to be in breach of article 8 ECHR due to its assessment of the proportionality of the provision being inconsistent with the obligation to ensure that “the best interests of children are a primary consideration” as required by article 3 of the United Nations Convention on the Rights of the Child.

The judgment of the Court of Appeal can  be found here, CM v Secretary of State for Work and Pensions [2014] EWCA Civ 286.

Ian Wise QC and Stephen Broach act for the deceased child’s father.

The 2014 Chambers Bar Awards shortlist has been announced. Monckton Chambers has once again been nominated for ‘Set of the Year’ in Competition/EU. Monckton has been nominated in this category for six consecutive years, successfully winning the award four times.

Additionally, we are pleased to announce that Jon Turner QC and Daniel Beard QC have been nominated for ‘Silk of the Year’ along with Anneli Howard for ‘Junior of the Year,’ in the Competition/EU category.

The results will be announced at The London Hilton on Park Lane on Thursday 2nd October.

Ms Itziar Bilbao Urrutia, the founder and curator of the Urban Chick Supremacy Cell (“UCSC”), an adult website and art project featuring BDSM images and audiovisual content, has today won her appeal against a decision of the Authority for Television On Demand (“ATVOD”) classifying UCSC as an “on-demand programme service (“ODPS”) as defined in and regulated by Part 4A of the Communications Act 2003 (“the 2003 Act”), which implements Directive 2010/13/EU (“the Audiovisual Media Services Directive” or “AVMS Directive”).

The Directive sets out minimum standards for the regulation of ODPS that are in competition with linear television – covering issues such as advertising, sponsorship and restrictions on access to harmful material by persons under the age of 18 – with the aim of leveling the commercial playing field between these modes of access to similar audiovisual content. In addition, Part 4A of the 2003 Act requires all ODPS providers to notify their service to ATVOD and pay a registration fee.

Ofcom, which decided Ms. Urrutia’s appeal pursuant to section 368B of the 2003 Act, considered that the UCSC website was not sufficiently comparable with linear television to constitute an ODPS having regards the length, content and narrative structure, production techniques and niche appeal of the audiovisual content available on the website. However, Ofcom has also published today a decision finding that another adult website, Frankie and Friends, did constitute an ODPS.

Ligia Osepciu, instructed by Daniel Godden and Myles Jackman at Hodge Allen and Jones and funded by sexual expression campaign group, Backlash, advised and assisted Ms. Urrutia in her successful appeal.

 

The Competition Appeal Tribunal (“CAT”) has held that BT should pay interest on sums that it over-charged rival communications providers.  BT’s sales of wholesale Ethernet services, used to provide broadband services to consumers, are regulated by Ofcom given BT’s significant market power.  Among other things, BT’s charges for these services must be reasonably derived from their costs of provision.  In 2012, Ofcom found that Sky, TalkTalk, Virgin and a number of other companies had been overcharged by BT to the tune of almost £100m over a period of several years ending in 2011.  However, Ofcom declined to award any interest on the overcharged amounts.  In its judgment, the CAT held that in the absence of interest BT has a weaker incentive to comply with its regulatory obligations.  BT is now far more likely to be required to pay interest on any excessive charges identified in future disputes. 

 

Meredith Pickford and Julian Gregory acted for Sky and TalkTalk.

 

To view the judgment, please click here.

In this landmark decision on just satisfaction the European Court of Human Rights made, by far, its largest ever award for pecuniary loss, ordering Russia to pay in the region of 1.9 billion Euros in compensation to shareholders of Yukos, the former Russian energy giant which ceased trading following tax proceedings taken against it by the Russian authorities. The Court made awards in respect of the unlawful imposition of penalties on the company (c. 1.3 Billion Euros) and unlawful interference with its rights under Article 1, Protocol 1 of the Convention on account of the enforcement proceedings taken against Yukos (c. 0.6 Billion Euros).

Piers Gardner acted for the applicant company throughout this case (2004-14) including during the six years since Yukos was liquidated and struck from the register of companies in Russia

Here is the full Yukos v Russia Judgment

Here is further comment on the case by the European Journal of International Law

In a judgment handed down on 31 July, the Court of Appeal has found that the UK scheme for giving formal recognition to changes of gender is compatible with EU law: MB v Secretary of State for Work and Pensions [2014] EWCA Civ 1109.

The Appellant (a male-to-female transsexual) argued that the requirement in UK law that she be unmarried in order to be recognised in her new gender gave rise to discrimination, contrary to the principle of Equal Treatment in the EU Social Security Directive (Council Directive 79/7/EEC).  The Court of Appeal rejected her argument, finding that it was for Member States to determine the conditions under which legal recognition was given to changes of gender, and that the condition in question was justified as a means of avoiding the creation of a same sex marriage at a time when such marriages were not otherwise permissible.

Whilst the Appellant’s argument was based on EU law, the Court of Appeal was guided by the recent decision of the European Court of Human Rights in Hamalainen v Finland, where the Court found that a similar condition in Finnish law was compatible with Articles 8, 12 and 14 of the ECHR.  The Court of Appeal considered that, in applying the Social Security Directive, the EU Court of Justice was likely to regard ECHR jurisprudence as “highly persuasive”.  The Court’s judgment is thus a further indicator of a growing harmonisation between EU law and ECHR law on fundamental rights such as the principle of equal treatment.

Ben Lask represented the Secretary of State for Work and Pensions.

Click to read the full MB v Secretary of State for Work and Pensions Judgment

In a judgment handed down on 31 July, the Court of Appeal has found that an EU law designed to facilitate the accession of Turkey to the EU does not confer on Turkish workers a right of permanent residence in the UK: R (Buer) v Secretary of State for the Home Department [2014] EWCA Civ 1109.

The Appellant argued that the Article 13 of Decision No 1/80, known as “the Standstill Clause” required the Home Secretary to assess an application for permanent residence in the UK under the Immigration Rules as they existed in 1980.  The Court of Appeal rejected this argument, holding that whilst the Standstill Clause entitled a Turkish worker to reside in the UK under the same conditions as existed in 1980 in order to access employment here, that Clause did not relate to settlement in a Member State and did not therefore prohibit the introduction of new restrictions on the right of settlement.

Ben Lask represented the Home Secretary.

Click to read the full R(Buer) v. Secretary of State for the Home Department Judgment

The Court of Appeal today dismissed a claim challenging the approach of the First-tier Tribunal (FTT) to the use of closed evidence procedures in information rights appeals. The judgment endorses the approach developed under the FOIA regime and contains some important observations on the unique features of appeals under FOIA and the narrow circumstances in which courts should permit counsel to see or hear evidence which they are not at liberty to disclose to their client.

In September 2008 Mr Browning, a journalist at Bloomberg News, made a FOIA request to the Department for Business, Innovation and Skills (DBIS) for information about companies who had applied for export licences to Iran. Part of his request was refused and the matter subsequently came before the FTT. As is common in FOIA appeals, for part of the hearing the FTT went into ‘closed session’ to hear evidence relating to the disputed information. The FTT refused a request by Mr Browning for his counsel to be present to cross-examine the witnesses and make submissions on the closed material, upon counsel giving appropriate undertakings as to confidentiality.

In a judgment in May 2013 ([2013] UKUT 0236 (AAC)) the Upper Tribunal upheld the FTT’s approach, holding that the tribunal’s function within the scheme of FOIA could not be equated to ordinary civil, adversarial litigation and that the FTT should not permit a representative of an excluded party to see closed material or attend a closed hearing unless it had concluded that it could not otherwise fulfil its investigatory function fairly and effectively, having regard to the competing rights and interest involved.

In its judgment today the Court of Appeal has upheld the Upper Tribunal’s judgment, rejecting the argument that such an approach is contrary to fundamental principles of open justice and natural justice, or ultra vires the FTT’s rules. The judgment confirms that the FTT’s rules permit the approach adopted in this case and that there are sound reasons for that approach ‘so that justice can be achieved to the fullest extent possible, having regard to the conflicting interests which arise in a unique statutory context’. The Court’s judgment also emphasises the need for the FTT to do its utmost to minimise the disadvantage to excluded parties, for example by disclosing as much as possible of what has transpired in a closed session in order to enable submissions to be made in relation to it.

Gerry Facenna and Julianne Kerr Morrison acted for the Department for Business, Innovation and Skills.

Please click to view the judgment in Browning v the Information Commissioner & Department for Business, Innovation and Skills [2014] EWCA Civ 1050

On 28-29 July a seven-judge panel of the Supreme Court heard a landmark case concerning the potential scope of the civil liability of police forces under Article 2, ECHR and/or negligence.

The case was brought by the surviving relatives of Joanna Michael, a woman who was killed by an abusive partner, who had threatened to kill her. Ms. Michael made an emergency call which the family claim was mishandled. Tragically, Ms. Michael was killed before a police emergency response.

The question facing the Supreme Court is two-fold: Whether it is arguable that the police were liable in negligence or in relation to article 2 of the European Convention on Human Rights in respect of Miss Michael’s death following the alleged mishandled response to her 999 call.

Conor McCarthy acted as junior counsel for Welsh Women’s Aid, intervenors in the case.

Further information on the case and its background is available  here:

http://www.bbc.co.uk/news/uk-wales-south-east-wales-28520626

Patersons of Greenoakhill has been refused permission to appeal to the Court of Appeal in a test case concerning all landfill site operators in  the UK. The Upper Tribunal rejected the argument that no landfill tax is payable on biomass when the methane it produces is converted into  electricity and sold to the national grid. It is not yet known whether permission will be sought from the Court of Appeal.