From The TimesFebruary 19, 2009

Deportations will not infringe human rights
House of Lords
Published February 19, 2009
RB (Algeria) v Secretary of State for the Home Department
U (Algeria) v Same
Othman (Jordan) v Same
Before Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood and Lord Mance
Speeches February 18, 2009

Appeals from decisions of the Special Immigration Appeals Commission were restricted to questions of law or irrationality.

The commission had been entitled to conclude, having regard to assurances given by the respective governments and to closed material, that the appellants would not, if deported, face a real risk of inhuman treatment contrary to article 3 of the European Convention on Human Rights or of violation of the article 6 right to a fair trial.

The House of Lords (i) dismissed appeals by RB and U, Algerians, from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith) (The Times August 3, 2007; [2008] QB 533) which had allowed their appeals from the commission and remitted their cases to it for reconsideration and (ii) allowed an appeal by the Secretary of State for the Home Department from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith) (The Times April 15, 2008; [2008] 3 WLR 798) which had allowed Omar Othman’s appeal that his expulsion would contravene article 6.

Mr Rabinder Singh, QC and Mr Hugh Southey for RB; Mr Richard Drabble, QC, Mr Hugh Southey and Mr Raza Husain for U; Mr Ian MacDonald, QC, Mr Mark Henderson and Ms Michelle Butler for Liberty, intervening; Mr Robin Tam, QC and Mr Robert Palmer for the Home Secretary; Mr Martin Chamberlain as special advocate for RB and U. Mr Michael Beloff, QC, Mr Robin Tam, QC, Mr Tim Eicke and Mr Alan Payne for the Home Secretary; Mr Edward Fitzgerald, QC, Mr Guy Goodwin-Gill, Mr Raza Husain and Mr Danny Friedman for Mr Othman; Mr Angus McCullough and Mr Martin Chamberlain as special advocates for Mr Othman. Lord Pannick, QC, Miss Helen Mountfield and Mr Tom Hickman for Justice and Human Rights Watch, intervening in all cases.

LORD PHILLIPS said that the Home Secretary wished to deport the appellants on the ground that each was a danger to the national security of the United Kingdom. Each contended that she could not do so because that would infringe his Convention rights.

RB and U contended that deportation to Algeria would infringe their rights under article 3 in that it would expose them to a real risk of torture or inhuman or degrading treatment. Mr Othman made a similar contention and also contended that he would face a real risk of a flagrant breach of his right to liberty under article 5 and of his right to a fair trial under article 6.

Each had unsuccessfully appealed against the order for his deportation to the commission and successfully appealed to the Court of Appeal. In each case, closed material had been put before the commission, which had given open and closed judgments, as had the Court of Appeal.

Closed material was defined by rule 37(1) of the Special Immigration Appeals Commission (Procedure) Rules (SI 2003 No 1034) as material on which the secretary of state wished to rely but which she objected to disclosing to the appellant or his representative.

The right to appeal to the Court of Appeal from a final determination of the commission was stated by section 7 of the Special Immigration Appeals Commission Act 1997 to be “on any question of law material to that determination”.

By restricting appeals to questions of law, Parliament had deliberately circumscribed the review of commission decisions that the Court of Appeal was permitted to undertake, so that it fell well short of the review that would be carried out if a case reached the European Court of Human Rights at Strasbourg.

The commission’s conclusions could only be attacked on the ground that it had failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters or been otherwise irrational. Its decisions could also be attacked on the ground that its procedures, such as the use of closed material, had failed to meet requirements imposed by law.

The wording of subsections (3) and (6) of section 5 of the 1997 Act was clear and contained no hint that rules providing for closed hearings could only be made in so far as that was necessary in the interests of national security and not in relation to the issue of safety on return, as the appellants contended. Rule 4 of the 2003 Rules fell fairly and squarely within the rule-making power in section 5.

The commission’s procedures struck a fair balance between the public interest, to which it was required to have regard, and the need to ensure that the hearing was fair. The appellants had not been denied a fair trial by reason of the use of the closed material.

In RB and U’s cases, the commission had held that, having regard to assurances given by the Algerian Government as to the way in which they would be treated on return, they would not face a real risk of inhuman treatment under article 3 if returned. The Jordanian Government had given similar assurances in Mr Othman’s case.

Decisions of the Strasbourg Court did not establish a principle that assurances had to eliminate all risk of inhuman treatment before they could be relied on, although they should be treated with scepticism if given by a country where inhuman treatment by state agents was endemic. The contention that the assurances did not, on their true construction, protect against inhuman treatment was not well founded.

Mr Othman contended that, if deported, he faced a retrial in respect of charges on which he had been convicted in his absence, that he would be tried by the State Security Court, which was not an independent and impartial tribunal, and that he would be at real risk of being convicted on the basis of confessions made by others that had been obtained by torture.

Before the deportation of an alien would be capable of violating article 6, there had to be substantial grounds for believing that there was a real risk that there would be a fundamental breach of the principles of a fair trial guaranteed by it and that that failure would lead to a miscarriage of justice that itself constituted a flagrant violation of the victim’s fundamental rights. The focus had to be not simply on the unfairness of the trial process but on its potential consequences.

The potential consequences in Mr Othman’s case were sufficiently severe to satisfy the second limb of the test. The question was thus whether there were substantial grounds for believing that he faced a real risk of a fundamental breach of the principles of a fair trial as recognised in Strasbourg.

While in a domestic case, the composition of the State Security Court would violate article 6, it did not follow that that would, of itself, constitute a flagrant breach of article 6 sufficient to prevent deportation in a foreign case.

The United Kingdom was not required to retain in this country to the detriment of national security a terrorist suspect unless it had a high degree of assurance that evidence obtained by torture would not be adduced against him. What was relevant in the appeal was the degree of risk that Mr Othman would suffer a flagrant denial of justice if deported to Jordan.

The commission had concluded that there were no reasonable grounds for believing that, if deported, the criminal trial that he would face would have defects of such significance as fundamentally to destroy its fairness. The Court of Appeal had held that in so concluding it had erred in law. In his Lordship’s view it had not done so, and the secretary of state’s appeal should be allowed.

Lord Hoffmann, Lord Hope, Lord Brown and Lord Mance delivered concurring opinions.

Solicitors: Fisher Meredith; Birnberg Peirce & Partners; Ms Corinna Ferguson, Southwark; Treasury Solicitor; Special Advocates Support Office, Treasury Solicitor. Treasury Solicitor; Birnberg Peirce & Partners; Special Advocates Support Office, Treasury Solicitor. Herbert Smith LLP.

From The TimesFebruary 18, 2009

Failure to seek advice is no intentional homelessness
Court of Appeal
Published February 18, 2009
Ugiagbe v Southwark London Borough Council
Before Lord Justice Sedley, Lord Justice Jacob and Lord Justice Lloyd
Judgment February 10, 2009

Failure to follow informal advice to go to a local housing authority’s homeless persons unit when threatened with eviction, did not make an applicant intentionally homeless.

The Court of Appeal so held in a reserved judgment in allowing an appeal by the claimant, Iyekekpolor Ugiagbe, against the decision of Judge Welchman at Lambeth County Court on July 1, 2008, that the defendant, Southwark London Borough Council had not made any error of law in treating her as intentionally homeless.

Mr Matthew Hutchings for Ms Ugiagbe; Mr Donald Broatch for Southwark.

LORD JUSTICE LLOYD said that when the claimant became homeless, together with her two young children, on November 5, 2007, she was eligible for assistance and was in priority need. The local authority refused to provide more than temporary housing for her on the basis that she had become homeless intentionally.

It was common ground that when her previous landlord asked her to leave, he was not entitled to possession without a court order, so that she need not have left when she did. It was also accepted that, had she gone to the homeless persons unit, they would have told her that.

Had the landlord applied to court for a possession order and she had been ordered to leave, then her giving up possession would not have been voluntary or intentional, and she would have had the benefit of the full duty to be rehoused under the Housing Act 1996.

In his Lordship’s judgment, while the claimant’s failure to go to the homeless persons unit could be said to have been foolish or imprudent, it was not in the category of not being in good faith.

The use of the phrase “good faith” carried a connotation of some kind of impropriety, or some element of misuse or abuse of the legislation. It was aimed at protecting local housing authorities from finding that they owed the full duty under the 1996 Act to a person who, despite some relevant ignorance, ought to be regarded as intentionally homeless.

The local authority was wrong in law when it concluded that the claimant should be treated as intentionally homeless because she was not acting in good faith.

Lord Justice Jacob and Lord Justice Sedley agreed.

Solicitors: Hallam Peel & Co, Southwark; Ms Deborah Collins, Southwark

From The TimesFebruary 17, 2009

Burden of proof in cases concerning foxhunting
Queen’s Bench Divisional Court
Published February 17, 2009
Director of Public Prosecutions v Wright Regina (Scott) v Taunton Deane Magistrates Court
Before Sir Anthony May, President and Mr Justice Maddison
Judgment February 4, 2009

The expression “hunt” a wild mammal with a dog in section 1 of the Hunting Act 2004 did not include the activity of searching for a wild animal for the purpose of stalking or flushing it.

The combined effect of section 101 of the Magistrates Courts Act 1980 and the provisions of the 2004 Act was not such as to place a legal burden of proof on the defendant to prove the exemptions set out in Schedule 1 to the 2004 Act, although there was an evidential burden on the defendant to adduce an evidential case which raised an issue whether his activity was exempt.

The Queen’s Bench Divisional Court so held when an appeal by the Director of Public Prosecutions by way of case stated against the decision of Judge Cottle at Exeter Crown Court to allow the appeal of Anthony Wright, huntsman of the Exmoor Foxhounds, against his conviction of hunting foxes with dogs contrary to section 1 of the 2004 Act.

At the same time, the court heard an application for judicial review by Maurice Scott, Peter Heard, and Donald Summersgill, three huntsmen who had been charged with unlawful hunting.

In the first case, the crown court had proceeded on a ruling of law that the burden of disproving that hunting was exempt under Schedule 1 was on the prosecution.

In the second, there was a challenge to a pretrial ruling made by District Judge Parsons at Taunton Deane Magistrates Court that it was for the defendant to satisfy the court that his hunting was exempt.

Mr Kerry Barker and Ms Rebecca Bradberry for the DPP and the Taunton Deane Court; Mr Philip Mott, QC, for Mr Wright and the Taunton Deane applicants.

THE PRESIDENT, giving the judgment of the court, said that the verb “hunt” was used transitively and its object, “a wild mammal”, indicated an identified quarry. The legislative aim of the 2004 Act was, in part, to prevent unnecessary suffering to wild mammals. A wild mammal which was never identified as a quarry did not suffer.

In the judgment of the court, “hunts” did not include the mere searching for an unidentified wild mammal for the purpose of stalking or flushing it. That said, the question whether a person hunted a wild mammal with a dog was heavily fact-specific.

As to the burden of proof, it was necessary to make a distinction between a legal or persuasive burden placed on the defendant to prove on the balance of probabilities that his hunting was exempt, failing which he would be convicted; and an evidential burden which was a burden to adduce an evidential case which raised an issue whether his hunting was exempt, whereupon the burden would be on the prosecution to prove that in that respect it was not exempt: see R v Hunt([1987] 1 AC 352, 369, 376) and R v Lambert ([2002] 2 AC 545, 572).

Where, as here, the linguistic construction of the statute did not clearly indicate upon whom the burden of proof should lie, the court should look to other considerations to determine the intention of Parliament, such as the ease or difficulty that respective parties would encounter in discharging the burden.

Applying the principles laid down by the House of Lords in Sheldrake v DPP (The Times October 15, 2004; [2005] 1 AC 264), the court was clear that to construe section 1 of, and Schedule 1 to the 2004 Act as imposing a legal burden of proof on the defendant would be an oppressive, disproportionate, unfair and unnecessary intrusion upon the presumption of innocence in article 6 of the European Convention on Human Rights.

The 2004 Act would be reasonably workable if it imposed only an evidential burden on the defence, and was to be so construed.

The DPP’s appeal failed; the claim for judicial review in the Taunton Deane case succeeded.

Solicitors: Crown Prosecution Service, Bristol; Knights Solicitors, Tunbridge Wells and Clarke Wilmott, Taunton.

From The TimesFebruary 17, 2009

Whether claimant is a worker
Court of Appeal
Published February 17, 2009
Barry v Southwark London Borough Council
Before Lady Justice Arden, Lord Justice Thomas and Lord Justice Lloyd
Judgment December 19, 2008

When determining whether a person claiming housing assistance had been unemployed for no more than six months and was a worker, a housing authority was entitled to look at his employment record in order to tell whether the work was effective and genuine, and not marginal and ancillary.

The Court of Appeal so held allowing the appeal of the claimant, Mohamed Barry, from the dismissal by Judge Welchman in Lambeth County Court on November 16, 2007 of his appeal from the refusal of the defendant, Southwark London Borough Council, to grant him housing assistance.

The council’s review officer had determined that Mr Barry, a citizen of The Netherlands, was not eligible under Part VII of the Housing Act 1996 on the ground he was not a worker under Community law.

The claimant had been unemployed and, while in receipt of jobseeker’s allowance, had taken casual work as a steward at the Wimbledon Tennis Championships in 2006.

He had suffered a serious accident in December 2006, as a result of which he was unable to work. His entitlement to the benefit of the council’s duties under the 1996 Act depended on whether he was a worker for the purposes of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations (SI 2006 No 1003). In turn, that required reference to the Immigration (European Economic Area) Regulations (SI 2006 No 1294).

Mr Richard Gordon and Mr Adrian Berry for Mr Barry; Ms Kerry Bretherton for Southwark.

LADY JUSTICE ARDEN said that the claimant submitted that the defendant authority had erred in law in not addressing his work history as a whole, and that the expression “worker” had a Community meaning which was concerned with freedom of movement, one of the fundamental freedoms; therefore, the term should not be interpreted restrictively: see Kempf v Staatsecretaris van Justitie (Case 139/85) ([1986] ECR 1741).

It was necessary to look at work history to tell whether the work was ancillary or marginal.

The claimant submitted that his earlier employment and his employment at Wimbledon could not be severed from his earlier employment history and that he retained the status of worker even if regard were had to his work at Wimbledon alone.

The defendant authority submitted that Community law gave the term “worker” a very wide interpretation: see Levin v Staatssec-retaris van Justitie (Case 53/81) ([1982] ECR 1035) and Lawrie-Blum v Land Baden-Württemberg (Case 66/85) ([1986] ECR 2121).

His Lordship said the judge had considered that the decision of the review officer was one of judgment which was not susceptible to review on appeal to the court.

However, he had not considered whether the prior employment history was a relevant factor in determining whether the claimant’s employment in the six-month period made him a worker for Community purposes. In addition, the work at Wimbledon was capable in itself of making the claimant a worker.

The review officer could not properly have come to any other conclusion and, therefore, had committed errors of law. Lord Justice Lloyd delivered a concurring judgment and Lord Justice Thomas agreed.

Solicitors: Pierce Glynn, Southwark; Ms Deborah Collins, Southwark.

From The TimesFebruary 16, 2009

Aircraft technical problem is not ‘extraordinary’
Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA in the Court of Justice of the European Communities

Court of Justice of the European Communities
Published February 16, 2009
Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA
Case C-549/07
Before K. Lenaerts, President of Chamber and Judges T. von Danwitz, E. Juhász, G. Arestis and J. Malenovský
Advocate-General E. Sharpston
(No opinion delivered)
Judgment December 22, 2008

A technical problem in an aircraft which led to the cancellation of a flight did not constitute a sufficiently extraordinary circumstance to justify the carrier refusing to pay compensation to passengers unless the problem stemmed from events which, by their nature or origin, were not inherent in the normal exercise of the carrier’s activity and were beyond its actual control.

The Fourth Chamber of the Court of Justice of the European Communities so ruled, inter alia, when giving a preliminary ruling under article 234 EC, pursuant to a reference by the Handelsgericht, Wien, Austria, on questions of interpretation of Regulation (EC) No 261/2004 of the European Parliament and of the Council of February 11, 2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L46/1).

The claimant booked three flights with the defendant from Vienna to Brindisi via Rome, the first flight being scheduled to depart from Vienna at 6.45am and the third to arrive in Brindisi at 10.35am the same day.

Five minutes before the aircraft was due to leave Vienna, the passengers were informed that the flight had been cancelled. The claimant was transferred to another flight to Rome, but only arrived there after the departure of the original connecting flight to Brindisi, and consequently did not arrive in Brindisi until 2.15pm.

The cancellation of the Vienna-Rome flight was due to a turbine failure in an engine which had been discovered during a check the day before and had been notified to the defendant at 1.00am on the day of the scheduled flight.

The claimant sought €250 compensation from the defendant under articles 5(1) and 7(1) of Regulation 261/2004, and in the course of proceedings brought by her after her request was refused, the European Court was asked to rule on the question, inter alia, whether a technical defect in an aeroplane, in particular damage to the engine, came within “extraordinary circumstances” in article 5(3).

Article 5 of the Regulation provides: “(1) In case of cancellation of a flight, the passengers concerned shall … (c) have the right to compensation by the operating air carrier in accordance with article 7, unless: … (iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to … reach their final destination less than two hours after the scheduled time of arrival…

“(3) An operating air carrier shall not be obliged to pay compensation in accordance with article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken…”

Article 7 provides: “(1) Where reference is made to this article, passengers shall receive compensation amounting to: (a) €250 for all flights of 1,500 kilometres or less…”

Recital 14 in the preamble states: “As under the [Montreal Convention for the Unification of Certain Rules for International Carriage by Air of May 28, 1999, signed and approved for the European Community by Council Decision 2001/539/EC of April 5, 2001 (OJ 2001 L194/38)], obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

“Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.”

In its judgment, the Fourth Chamber of the Court of Justice held:

“Extraordinary circumstances” was not defined in the 2004 Regulation, but the phrase was to be interpreted narrowly since article 5(3) constituted a derogation from the principle, indicated in recitals 1 and 2 of the preamble, of protection of consumers, in as much as cancellation of flights caused serious inconvenience to passengers.

It was apparent from recital 14 in the preamble that the legislative intention was not that the events mentioned there, the list of which was only indicative, themselves constituted extraordinary circumstances, but only that they could produce such circumstances.

It followed that all the circumstances surrounding such events were not necessarily grounds of exemption from the obligation to pay compensation.

Although the list included “unexpected flight safety shortcomings” and although a technical problem in an aircraft could be among such shortcomings, the fact remained that the circumstances surrounding such an event could be characterised as extraordinary within article 5(3) only if they related to an event which was not inherent in the normal exercise of the activity of the air carrier concerned and was beyond the actual control of that carrier on account of its nature or origin.

Air carriers were inevitably confronted with technical problems as a matter of course in the exercise of their activity, and it was in order to avoid such problems and to take precautions against incidents compromising flight safety that aircraft were subject to regular checks which were particularly strict, and were part and parcel of the standard operating conditions of air transport undertakings.

The resolution of a technical problem caused by failure to maintain an aircraft was therefore to be regarded as inherent in the normal exercise of an air carrier’s activity, and consequently, technical problems which came to light during maintenance of aircraft, or on account of failure to carry out such maintenance, could not constitute, in themselves, “extraordinary circumstances”.

However, it could not be ruled out that technical problems were covered by those exceptional circumstances to the extent that they stemmed from events which were not inherent in the normal exercise of the activity of the carrier and were beyond its actual control, for example, if it was revealed by the aircraft manufacturer or a competent authority that aircraft already in service were affected by a hidden manufacturing defect which impinged on flight safety, or where damage to the aircraft was caused by acts of sabotage or terrorism.

For reasons stated by it, the court held that the Montreal Convention, article 19 of which provided for exemption of a carrier from liability for damage occasioned by delay “if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures”, was not determinative of the interpretation of the grounds of exemption under article 5(3) of the Regulation.

On those and further grounds stated by it the Court ruled:

1 Article 5(3) of Regulation 261/2004 was to be interpreted as meaning that a technical problem in an aircraft which led to the cancellation of a flight was not covered by the concept of “extraordinary circumstances” within the meaning of that provision, unless that problem stemmed from events which, by their nature or origin, were not inherent in the normal exercise of the activity of the air carrier concerned and were beyond its actual control.

The Montreal Convention was not decisive for the interpretation of the grounds of exemption under article 5(3) of Regulation 261/2004.

2 The frequency of the technical problems experienced by an air carrier was not in itself a factor from which the presence or absence of “extraordinary circumstances” within the meaning of article 5(3) could be concluded.

3 The fact that an air carrier had complied with the minimum rules on maintenance of an aircraft could not in itself suffice to establish that the carrier had taken “all reasonable measures” within the meaning of article 5(3) and, therefore, to relieve the carrier of its obligation to pay compensation under articles 5(1)(c) and 7(1).

From The TimesFebruary 13, 2009

Council must assess needs
Court of Appeal
Published February 13, 2009
Regina (Liverpool City Council) v Hillingdon London Borough Council and Another
Before Lord Justice Rix, Lord Justice Dyson and Lord Justice Wilson
Judgment February 10, 2009

A local authority had failed to carry out its duty under section 20 of the Children Act 1989 when dealing with an asylum-seeker who claimed to be a child because it did not carry out an assessment of his welfare needs, or of the kind of accommodation that would be required to meet them.

The Court of Appeal so held allowing an appeal by Liverpool City Council from the dismissal by Mr James Goudie, QC, sitting as a deputy Queen’s Bench Division judge (The Times October 3, 2008), of its claim for judicial review against the London Borough of Hillingdon on the basis that the borough rather than the city should take responsibility for looking after AK as a child in need under section 20(1) of the 1989 Act.

Mr Bryan McGuire and Miss Peggy Etiebet for Liverpool; Mr Hilton Harrop-Griffiths for Hillingdon; Mr Adam Fullwood for AK.

LORD JUSTICE DYSON said the issue on the appeal was whether Hillingdon had discharged its duty under section 20(1) in relation to AK’s accommodation. It contended that it did and that, since it had returned AK to the Liverpool City Council area, the section 20(1) duty lay on Liverpool.

Hillingdon had maintained throughout that it had no responsibility for AK under the 1989 Act. It had merely ascertained that AK wished to go to Liverpool and assisted him to achieve his wish maintaining throughout that the section 20 duty was on Liverpool.

However, section 20(6) did not provide that the child’s wishes and feelings were determinative; they were to be given “due consideration”.

In his Lordship’s view, a local authority should reach the conclusion that the child’s wishes were decisive only as part of its overall judgment including an assessment of the child’s welfare needs and the type and location of accommodation that would meet those needs. That might be done swiftly and easily where the child was mature, articulate and intelligent and had strong and reasoned views on where he or she wanted to be.

Hillingdon had made no assessment of AK’s needs and it followed that they did not make any assessment of what kind of accommodation would meet those needs. They did not take account of his age, because they did not know what it was. They did not make any assessment of his understanding. They did not make inquiry of what accommodation would be available in Liverpool and whether it would be suitable for his needs. That was not a proper discharge of the section 20 duty.

Lord Justice Wilson agreed and Lord Justice Rix concurred in the result.

Solicitors: Ms Charlie Adan, Liverpool; Mr Rajesh Alagh, Hillingdon; Jackson & Canter, Liverpool.

From The TimesFebruary 13, 2009

One EU court cannot stop case in another
Court of Justice of the European Communities
Published February 13, 2009
Allianz SpA and Another v West Tankers Inc
Case C-185/07
Before V. Skouris, President and Judges P. Jann, C. W. A. Timmermans, A. Rosas, K. Lenaerts, A. Ó Caoimh, P. Kuris, E. Juhász, G. Arestis, A. Borg Barthet, J. Klucka, E. Levits and L. Bay Larsen Advocate General J. Kokott
(Opinion September 4, 2008)
Judgment February 10, 2009

It was not open to a court in one European Union member state to order a party in a case before it to discontinue proceedings begun by that party in another member state on the ground that the parties had agreed to refer any disputes between them to arbitration in the first state.

The Grand Chamber of the Court of Justice of the European Communities so held when delivering a preliminary ruling on a reference by the House of Lords under articles 68 and 234 EC.

A vessel owned by West Tankers Inc and chartered by Erg Petroli SpA, under a charter-party governed by English law and containing a clause providing for arbitration in London, collided with and caused damage to a jetty in Syracuse, Italy, owned by Erg.

On a claim by Erg, Allianz SpA and Generali Assicurazioni Generali SpA, the insurers, paid compensation to Erg and, under their right of subrogation to Erg’s claims, brought proceedings against West Tankers before the Tribunale di Siracusa, Italy.

West Tankers raised an objection of lack of jurisdiction, on the basis of the existence of the arbitration agreement.

West Tankers also brought proceedings in England for a declaration that the dispute between itself and the insurers was to be settled by arbitration pursuant to the arbitration agreement, and for an injunction restraining the insurers from pursuing any proceedings other than arbitration and requiring them to discontinue the proceedings in Italy.

The High Court granted the antisuit injunction sought, and the insurers appealed to the House of Lords, arguing that the granting of the injunction was contrary to Council Regulation (EC) No 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L12/1).

The House of Lords took the view that the principle, decided in Case C-116/02 Erich Gasser GmbH v MISAT Srl ([2005] 1 QB 1) and Case C-159/02 Turner v Grovit([2005] 1 AC 1), that an injunction restraining a party from commencing or continuing proceedings in a court of a member state was not compatible with the system established by Regulation No 44/2001, could not be extended to arbitration, which was completely excluded from the scope of the regulation by article 1(2)(d).

The House of Lords referred a question on that issue to the European Court.

In its judgment the Grand Chamber of the Court of Justice held: Proceedings which might appear to be excluded from the scope of Regulation No 44/2001 could nevertheless have consequences which undermined its effectiveness, and that was so if such proceedings prevented a court of another member state from exercising the jurisdiction conferred on it by the regulation.

If, because of the subject matter of the dispute, ie the nature of the rights to be protected in proceedings, such as a claim for damages, those proceedings came within the scope of Regulation No 44/2001, a preliminary issue concerning the applicability of an arbitration agreement, including in particular its validity, also came within its scope of application.

It followed that the objection of lack of jurisdiction raised by West Tankers before the Tribunale di Siracusa on the basis of the existence of an arbitration agreement came within the scope of Regulation No 44/2001 and that it was exclusively for that court to rule on that objection and on its own jurisdiction, pursuant to articles 1(2)(d) and 5(3) of the regulation.

The use of an antisuit injunction to prevent a court of a member state, which normally had jurisdiction to resolve a dispute under article 5(3), from ruling, in accordance with article 1(2)(d), on the very applicability of the regulation to the dispute brought before it, necessarily amounted to stripping that court of the power to rule on its own jurisdiction under the regulation.

Such an injunction was contrary to the general principle that every court seised itself determined, under the rules applicable to it, whether it had jurisdiction to resolve the dispute before it: see Gasser, paragraphs 48 and 49.

On those and further grounds stated by it the Court ruled: It was incompatible with Regulation No 44/2001 for a court of a member state to make an order to restrain a person from commencing or continuing proceedings before the courts of another member state on the ground that such proceedings would be contrary to an arbitration agreement.

From The TimesFebruary 12, 2009

Information Tribunal has jurisdiction over BBC as public authority
House of Lords
Published February 12, 2009
British Broadcasting Corporation v Sugar and Another
Before Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches February 11, 2009

The British Broadcasting Corporation was a public authority for the purposes of the Freedom of Information Act 2000 which meant that all requests for information were subject to the jurisdiction of the Information Commissioner and, on appeal, the Information Tribunal, even if the information requested was held for the purposes of art, journalism or literature.

The House of Lords so held by a majority (Lord Hoffmann and Lady Hale dissenting) in allowing an appeal by the appellant, Steven Sugar, against the dismissal by the Court of Appeal (Lord Justice Buxton and Lord Justice Lloyd and Sir Paul Kennedy) ([2008] 1 WLR 2289) of Mr Sugar’s appeal from Mr Justice Davis, in the Administrative Court of the Queen’s Bench Division (The Times May 22, 2007; [2007] 1 WLR 2583) who allowed an appeal by the first respondent, the BBC, from a decision of the Information Tribunal (Mr John Angel, chairman, Mr Henry Fitzhugh and Mr John Randall) promulgated on August 29, 2006, that it had jurisdiction to reach a decision on whether the second respondent, the Information Commissioner, had been correct to rule that the BBC was not a public authority in respect of Mr Sugar’s request for information.

Mr Tim Eicke, Mr David Craig and Mr Siddharth Dhar for Mr Sugar; Ms Monica Carss-Frisk, QC and Ms Kate Gallafent for the BBC; the Information Commissioner did not appear and was not represented.

LORD PHILLIPS said that the 2000 Act provided for a general right of access to information held by public authorities. That right was subject to exceptions. The Act made provision for its enforcement by the Information Commissioner and for a right of appeal from a decision of the commissioner to the Information Tribunal.

Schedule 1 to the Act listed the public authorities to which the Act applied. A small number of those were listed in respect only of certain specified information. One of those was the BBC, which was listed as “The British Broadcasting Corporation in respect of information held for purposes other than those of journalism, art or literature”.

The BBC held a report that it had commissioned in respect of its coverage of the Middle East, the Balen Report. Mr Sugar asked the BBC to provide him with a copy of that report.

The BBC contended that it held the report for the purposes of journalism and not as a public authority and that, in consequence, the Act had no application. His Lordship would call the issue of whether or not the BBC held the report for journalistic purposes “the journalism issue”.

Mr Sugar challenged the BBC’s response before the commissioner. The commissioner upheld the BBC’s contention. Mr Sugar appealed to the tribunal. The BBC argued that the tribunal had no jurisdiction. The tribunal held that it had jurisdiction and purported to exercise it by reversing the commissioner’s decision on the journalism issue.

The BBC then brought, simultaneously, an appeal under the provisions of the Act and a claim for judicial review. The claim succeeded; the judge held that the commissioner had determined that he had no jurisdiction. He had made no decision that was susceptible to an appeal to the tribunal under the Act. The tribunal had acted without jurisdiction and its decision could not stand. His Lordship would describe the issue of whether the tribunal had jurisdiction as “the jurisdiction issue”.

Schedule 1 was lengthy. Some public authorities were listed generically, others individually. Out of approximately 500 names in the list originally scheduled to the Act, nine were qualified by reference to the class of information held, of which one was the BBC. His Lordship would refer to that class of public authorities as “hybrid authorities”. The information held by them in their capacity as public authorities would be described as “public information”. The other information held by them would be described as “excluded information”.

Section 1 of Part I of the Act applied whenever a request for information was made to a public authority, whatever the nature of the information sought, whether the public authority held the information or not and, in the case of a hybrid authority, whether the information was public or excluded.

When a request for information was specifically made under the Act to a hybrid authority it was axiomatic that the maker of the request was making it to the hybrid authority in its capacity as a public authority. That was because the obligations under the Act only applied to public authorities.

So far as Mr Sugar was concerned, the terms of his letter of request made it quite clear that he was asserting that the BBC owed him a duty to provide the Balen Report in its capacity as a holder of public documents. He was well aware that the BBC would be under no duty to provide him with the information if it did not hold it as a public document and thus in its capacity as a public authority.

It followed that, on the facts of the case, it was quite wrong to treat Mr Sugar as having made a request to the BBC other than in its capacity as a public authority simply because of the nature of the information that he was requesting.

The response given by the BBC was more detailed than necessary if, as it claimed, the Balen Report was excluded information. On that premise, the response more than satisfied the BBC’s obligation under section 1 to confirm or deny whether or not it held information of the description specified in the request.

The issue raised by Mr Sugar was, however, whether that premise was correct. That was an issue that he was entitled to raise by his complaint to the commissioner under section 50 and the commissioner had jurisdiction to entertain that complaint.

The issue that the commissioner was asked to resolve by Mr Sugar by his letter of complaint was whether the BBC was correct to contend that the Balen Report was held for the purpose of journalism.

The commissioner decided that question. He found that the BBC was not under an obligation to release the contents of the report. That was a decision that Mr Sugar was entitled to challenge before the tribunal, provided that the commissioner had conveyed it to him in a decision notice.

Section 50 of the Act did not prescribe the form of a decision notice. His Lordship considered that that phrase simply described a letter setting out the commissioner’s decision. That was precisely the letter that the commissioner wrote to Mr Sugar.

For those reasons the tribunal had jurisdiction to make the decision that it did and the appeal would be allowed. It followed that the governing decision on the journalism issue was that of the tribunal, and that the only possible appeal from that decision lay to the High Court on a point of law.

The judge had, of course, already ruled on the journalism issue, but he approached that issue as one raised in a judicial review challenge by Mr Sugar of the commissioner’s decision on the point. He asked himself whether the decision of the commissioner was a lawful and rational one, properly open to him on the material before him.

That was not the test that he should have applied had he concluded, as he should have done, that the tribunal’s decision was made with jurisdiction and that the BBC’s only right to challenge it was on the ground that it was wrong in law. It followed that the result of allowing this appeal would be to restore the tribunal’s decision.

Lord Hope and Lord Neuberger delivered concurring opinions. Lord Hoffmann and Lady Hale delivered dissenting opinions.

Solicitors: Ms Sarah Jones, White City; Forsters LLP.

From The TimesFebruary 11, 2009

No state immunity against enforcing foreign judgment
Queen’s Bench Division
Published February 11, 2009
NML Capital Ltd v Republic of Argentina
Before Mr Justice Blair
Judgment January 29, 2009

A foreign state was not entitled to claim sovereign immunity to avoid enforcement of a judgment validly obtained in another overseas jurisdiction.

Mr Justice Blair, so held in the Commercial Court of the Queen’s Bench Division, when dismissing an application by the Republic of Argentina to set aside an order of Mr Justice David Steel made on April 2, 2008, granting NML Capital Ltd permission to serve proceedings out of the jurisdiction in respect of a judgment debt made in favour of NML against Argentina by the United State District Court for the Southern District of New York in the sum of US$284,184,623.30. Argentina applied to set aside the order for service out of the jurisdiction on the ground that, as a sovereign state, it was immune from suit by virtue of section 1 of the State Immunity Act 1978.

Mr Andrew Onslow, QC, Mr Jonathan Nash, QC and Mr Peter Radcliffe for NML; Mr Anthony Trace, QC, Mr Benjamin John and Mr Ciaran Keller for Argentina.

MR JUSTICE BLAIR said that section 31 of the Civil Jurisdiction and Judgments Act 1982 dealt comprehensively with the recognition and enforcement of the judgments of foreign courts against states as to both jurisdictional immunity and enforcement.

Under section 31(1), a foreign judgment would be recognised and enforced in the British court if (i) the foreign court would have had jurisdiction applying sovereign immunity rules corresponding to those applicable in the United Kingdom in the 1978 Act and (ii) if it would be so recognised and enforced had it not been given against a state.

The requirements of section 31(1) were met and the Republic of Argentina could not claim jurisdictional immunity. The application to set aside the judgment for service of proceedings out of the jurisdiction was set aside.

Solicitors: Dechert LLP; Travers Smith LLP

From The TimesFebruary 11, 2009

Sentencing for concealing terrorist information
Court of Appeal, Criminal Division
Published February 11, 2009
Regina v Sherif
Regina v Ali (Siraj)
Regina v Ali (Muhedin)
Regina v Mohamed
Regina v Abdurahman
Regina v Abdullahi
Before Lord Justice Latham, Mr Justice Openshaw and Mr Justice Burnett
Judgment November 21, 2007

The seriousness of terrorist activity about which a defendant failed to give information, rather than the extent of the information that could have been provided, was what determined the level of criminality which had to be reflected in the sentence.

Section 21(4) of the Criminal Justice and Immigration Act 2008, which introduced section 240A into the Criminal Justice Act 2003, gave credit against sentence of half the number of days spent when a defendant had been subject to an electronically monitored curfew of at least nine hours a day.

The Court of Appeal, Criminal Division, so stated in a reserved judgment when: refusing Siraj Ali and Muhedin Ali leave to appeal against their convictions, dismissing the appeal against conviction by Ismail Abdurahman and allowing appeals against sentence by Abdul Sherif (assisting an offender, count 12, and failing to give information post-event, count 20), Siraj Ali (prior-knowledge offences, counts 1 and 2, post-event offences, counts 14 and 15, and assisting an offender, count 11), Muhedin Ali (assisting an offender, count 12, and failure to give information post-event, counts 26 and 27), Wahbi Mohamed (prior-knowledge offences, counts 5, 6, 7 and 8, assisting an offender, counts 12 and 13, and failing to give information post-event, counts 22, 23, 24 and 25) and Ismail Abdurrahman (assisting an offender, count 12, and failing to give information, counts 16, 17, 18 and 19) against the maximum terms, imposed consecutively, by Judge Worsley, QC, in Kingston upon Thames Crown Court on February 4, 2008, but dismissing the appeal against sentence by Fardosa Abdullahi.

The offences related to prevention of the commission of an act of terrorism and securing arrest contrary to section 38B(2) of the Terrorism Act 2000, inserted by section 3 of the Anti-terrorism, Crime and Security Act 2001, and section 38(1)(a) and (b) of the 2000 Act and assisting an offender with intent to impede arrest or prosecution contrary to section 4(1) of the Criminal Law Act 1967.

Siraj Ali’s 12-year sentence was reduced to nine years, 479 days had been spent under house arrest. Ismail Abdurahman’s 10-year sentence was reduced to eight years. Abdul Sherif’s 10-year sentence was reduced to six years and nine months, 467 days had been spent under house arrest. Wahbi Mohammed’s 17-year sentence was reduced to 13 years, 304 days had been spent under house arrest. Muhedin Ali’s seven-year sentence was reduced to four years, 479 days had been spent under house arrest.

Mr Oliver Blunt and Mr Mark Summers for Abdul Sherif; Mr Owen Davies, QC for Siraj Ali; Mr Charles Bott, QC and Mr Christopher Henley for Muhedin Ali; Mr David Spens, QC for Wahbi Mohamed; Mr John King and Miss Anne Faul for Ismail Abdurahman; Mr Jo Cooper, solicitor, for Fardosa Abdullahi; Mr Max Hill, QC and Ms Emma Gargitter for the Crown.

LORD JUSTICE LATHAM, giving the judgment of the court, said the fact that Parliament had passed the 2008 Act should be reflected in the court’s consideration of the appeals against sentence.

Four of the appellants had been under house arrest. Issues of principle raised in the appeals against sentence included whether the judge had been right to impose the maximum sentence on so many counts.

Although the enormity of the crime and the risk those bombers posed to public safety until their arrest, was capable, in appropriate circumstances, of justifying the imposition of the maximum sentence to either, and even to both limbs of section 38B of the 2000 Act, as inserted, it was the seriousness of the terrorist activity about which a defendant failed to give information which would determine the level of criminality rather than the extent of the information which could be provided, which would affect the sentence.

The other issue of principle of importance concerned the imposition of consecutive sentences. There was nothing wrong in principle with imposing consecutive sentences where both limbs of section 38B were charged.

The failure to give information before the act, arguably the more serious offence and the failure to given information afterwards, were separate offences.

But where the offence of assisting an offender was charged, as here, care needed to be taken to ensure that there was criminality over and above the failure to inform, if a consecutive sentence was to be justified.

When refusing the application by Muhedin Ali for leave to appeal against his conviction, the court stated that, on an ordinary construction of the wording of section 4(1) of the 1967 Act, the making of an offer of accommodation was “an act,” even if it was made over the telephone, whether or not the person making the offer made or received the call.

Solicitors: Arani & Co, Southall; McCormacks; Powell, Spencer & Partners; AA Mirsons; DK Fisher; TNT Solicitors; Crown Prosecution Service.