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On 5 August 2009, at 2.29am, Ms Michael dialled 999 from her mobile phone. She told the call handler at the Gwent Police call centre that: her ex boyfriend was aggressive; he had just turned up at her house; he had found her with another man; he had bitten her ear really hard; he then drove the other man home with Ms Michaels car but, before doing so, told her that he would return to hit her; that he was going to be back any minute literally; and, according to the recorded transcript of this conversation, that her ex boyfriend had told her Im going to drop him home and (inaudible) [fucking kill you]. The call handler later gave evidence that she had heard hit you rather than kill you. Gwent Police graded the call G1; it required an immediate response. The call handler immediately called South Wales Police, in whose area Ms Michael lived, and summarised their conversation. No mention was made of a threat to kill. South Wales Police graded the call G2; officers should respond within 60 minutes. Ms Michaels home was five or six minutes from the nearest police station. Ms Michael called 999 again at 2.43am. Following a scream from Ms Michael, the line went dead. South Wales Police were informed immediately and officers arrived at Ms Michaels address at 2.51am. They found that she had been brutally attacked, stabbed many times and was dead. Her attacker subsequently pleaded guilty to murder and was sentenced to life imprisonment. The Independent Police Complaints Commission later seriously criticised both police forces for individual and organisational failures. Ms Michaels parents and children (the Appellants) claimed against the Chief Constables of the Gwent Police and the South Wales Police (the Respondents) for damages in, amongst others, negligence and under the Human Rights Act 1998 pursuant to Article 2 (right to life) of the European Convention on Human Rights (ECHR). The Respondents sought a strike out of these claims or summary judgment. At first instance, HHJ Jarman QC refused to strike out or give summary judgment on these claims. On appeal, the Court of Appeal unanimously held that there should be summary judgment for the Respondents on the negligence claim but, with Davis LJ dissenting, the Article 2 ECHR claim should proceed to trial. The Appellants appealed against the Court of Appeal decision on the negligence claim and the Respondents appealed against the Court of Appeal decision on the Article 2 ECHR claim. The Supreme Court dismisses the Appellants appeal by a majority of 5 2 (Lady Hale and Lord Kerr dissenting) and unanimously dismisses the Respondents cross appeal. Lord Toulson (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hodge agree) gives the lead judgment. Lady Hale and Lord Kerr give separate judgments both allowing the Appellants appeal (in dissent) and dismissing the Respondents cross appeal. Lord Toulson asks whether, in the context of police protecting victims from potential future crimes, an exception should be made to the ordinary application of common law principles that a defendant will not generally be liable for harm to a claimant caused by the conduct of a third party [116]. Having surveyed the case law [29] [96], including from abroad, Lord Toulson rejects the arguments that the police owe a duty of care in negligence where: (i) they are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group (Interveners Liability Principle); or alternatively, (ii) a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his life or physical safety (Lord Binghams Liability Principle). On the first issue, the Interveners Liability Principle is rejected because: (i) it is hard to see why the duty should be confined to physical injury or death or to particular victims and not others [119] [120]; (ii) it is speculative whether a duty would improve the performance of individual officers in domestic violence cases and it is not in the public interest for police priorities to be affected by the risk of being sued [121]; (iii) it would have potentially significant financial implications for the police and/or public [122]; (iv) it is not necessary to develop the law of negligence to mirror or go beyond what is required by Articles 2 and 3 (right to be free from torture or inhuman or degrading treatment or punishment) ECHR [125] ECHR claims have different objectives from civil actions such as negligence [127]. On the second issue, and in addition to those reasons, Lord Binghams Liability Principle is rejected as it would be unsatisfactory to draw dividing lines according to: (i) who reports the threat; (ii) whether the threat is credible and imminent or credible but not imminent; (iii) whether the whereabouts of the threat maker are known or not; and, (iv) whether the threat was aimed at physical injury or not [129]. It should be for Parliament to determine the existence and scope of such a compensatory scheme [130]. On the third issue, it is untenable that what the call handler said to Ms Michael gave rise to an assumption of responsibility. The call handler gave no promise as to how quickly the police would respond and did not advise or instruct her to remain in her house [138]. On the fourth issue (Article 2 ECHR), whether the call handler should have heard Ms Michael say that her ex boyfriend was threatening to kill her is a question of fact to be investigated at trial [139]. Lord Kerr (dissenting) would have allowed the appeal. There should be recognised a sufficient proximity of relationship, such as to create a duty on the police in negligence, where: (i) there is a closeness of association between the claimant and the defendant, such as where information is communicated to the defendant; (ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken; (iii) the defendant might reasonably be expected to provide protection in those circumstances; and, (iv) the defendant should be able to provide for the intended victims protection without unnecessary danger to himself [144]. On these facts, there was clearly a sufficient proximity of relationship between the police and Ms Michael [173]. The general rule that there is no duty to protect others from third party harm is not appropriate for members of a force whose duty it is to provide protection [181]. The fundamental principle that legal wrongs should be remedied outweighs the complete absence of evidence to support the claims of dire consequences if liability was found [186]. Lady Hale (dissenting), supporting the analysis of Lord Kerr, would also have allowed the Appellants appeal. The policy reasons said to preclude a duty in a case such as this are diminished by the fact that the police already owe a common law, positive duty in public law to protect members of the public from harm caused by third parties [195], as well as by the existence of the ECHR claims [196].

The Appellant is the chair of the Chagos Refugees Group. He represents residents of the Chagos Archipelago in the British Indian Ocean Territory (BIOT) who were removed and resettled elsewhere by the British Government between 1971 and 1973 and were prevented from returning. Following earlier proceedings, it remains prohibited under the BIOT Constitution and Immigration Orders 2004, for Chagossians to return to BIOT. In these proceedings the Appellant challenged the decision of the Respondent to establish a marine protected area (MPA) in which there would also be no fishing in April 2010 in BIOT. This led to an end of commercial fishing carried on by Chagossians in the waters surrounding BIOT. The Appellants challenge before the Supreme Court had two limbs: (i) the Respondents decision was motivated by the improper ulterior motive of making future resettlement by the Chagossians impracticable, and (ii) the consultation which preceded the decision was flawed by a failure to disclose the arguable existence, on the part of Mauritius, of inshore fishing rights (i.e. within a 12 mile limit from the BIOT shore). A sub issue within limb (i) concerned the admissibility of a document which formed the core of the Appellants case. The document, which was published by The Guardian on 2 December 2010 and The Telegraph on 4 February 2011, purported to be a communication cable sent on 15 May 2009 by the US Embassy in London to departments of the US Federal Government in Washington DC, to elements in the US military command structure and to the US Embassy in Mauritius. The cable is recorded as having been sent to the newspapers by Wikileaks. It claims to be a record of conversations between employees (Mr Roberts and Ms Yeadon) of the Foreign and Commonwealth Office (FCO) and US officials. In the Administrative Court, permission was initially given to cross examine Mr Roberts on the cable. This was to be on the assumption that the cable was what it purported to be and that it would be open to the Appellant, at the end of the hearing, to submit that it was an accurate record of the meeting and that the Court should rely on it evidentially. Various questions were put to Mr Roberts on that basis. Following further submissions from the Respondent concerning the inviolability of the US missions diplomatic archive under the Vienna Convention on Diplomatic Relations 1961 (VCDR) and the Diplomatic Privileges Act 1964, the Administrative Court reversed its position. The Appellant was no longer able to invite the Court to treat the cable as genuine. Further cross examination of Mr Roberts and Ms Yeadon was to proceed on that basis. The Court of Appeal considered that the cable should have been admissible but that its exclusion before the Administrative Court would not or could not have made any difference to that courts conclusions on improper purpose. The Supreme Court unanimously holds that the cable should have been admitted into evidence before the Administrative Court. Lord Mance and Lord Sumption (with whom Lord Neuberger, Lord Kerr, Lord Clarke, and Lord Reed agree) and Lady Hale write concurring judgments on the issue of the admissibility of the cable. A majority of the Court led by Lord Mance with whom Lord Neuberger, Lord Clarke, Lord Sumption and Lord Reed agree, dismisses the appeal on limb (i). The exclusion of the cable by the Administrative Court could have had no material effect on the outcome regarding improper motive. Lord Kerr and Lady Hale dissent on limb (i) of the appeal. The Court unanimously dismisses the appeal on limb (ii). Admissibility of the Cable In his judgment Lord Mance holds that the cable had lost its inviolability, for all purposes, including its use in cross examination or evidence in the present proceedings [21 and 90]. The inviolability of documents which are part of a mission archive under arts 24 and 27(2) of the VCDR makes it impermissible to use such documents (or copies) in a domestic court of the host country, absent extraordinary circumstances such as state security, or express waiver from the mission state [17 and 20]. This principle is subject to two qualifications: (a) the document must constitute and remain part of the mission archive, and (b) its contents must not have become so widely disseminated in the public domain so as to destroy any confidentiality or inviolability that could sensibly attach to it. Regarding (a), in the present case, once the cable reached the State Department or any other addressee, the copy in their hands became a document in the custody of the US Federal Government and not part of the London Embassy archive. As a matter of probability, the cable was extracted from the State Department or one of the foreign locations to which it had been transmitted. On that basis the cable is admissible [20]. Regarding (b), it is in principle possible for a document to lose inviolability where it comes into the public domain, even in circumstances where the document has been wrongly extracted from the mission. The cable has been put into the public domain by the Wikileaks publication and the newspaper articles which followed, in circumstances for which the Appellant has no responsibility. On that ground, the cable would also be admissible [21]. In his judgment, Lord Sumption concludes that a document is part of the archives of a diplomatic mission when it is under the control of the missions personnel, as opposed to other agents of the sending state, whether directly or by virtue of the terms on which the mission transmitted the document to another governmental entity. The documents origin and contents are irrelevant to that issue [68]. The confidentiality and inviolability of such documents depends not on their subject matter or contents but on their status as part of the archives or documents of a diplomatic mission, protected by art 24 of VCDR [69]. It is the obligation of the receiving state to give effect to that status, which includes preventing its infringement by other parties. Thus, a court as an organ of the state would violate art 24 if it received and used material from the archives of a mission which came into the hands of a third party without authority [70 71]. This is subject to a reservation. Documents obtained from the archives of a mission without authority but which have entered the public domain and are freely available have already had their confidentiality destroyed. A court would not be an instrument of the destruction of its confidentiality by using it in that circumstance [74 75]. The Respondents cross appeal on this issue faces two distinct difficulties (a) the cable did not emanate from the US mission in London and (b) the document has entered the public domain [76]. Lady Hale agrees with both Lord Mance and Lord Sumption that the inviolability of the archives, documents and official correspondence of a mission means that they cannot generally be admitted in evidence under arts 24 and 27(2) of VCDR [124]. However, Lady Hale introduces the qualification to the judgments given by Lord Mance and Lord Sumption that documents emanating from a mission must retain their confidentiality and consequent inviolability in some circumstances, the main purpose of the inviolability rule being to allow the mission to communicate in confidence with the sending government [125]; and that control must include restrictions placed by the sending mission on the further transmission and use of the document, such as markings of confidentiality [126 127]. However, in this case, whatever control was initially exercised over the document, it had found its way into many hands and was lost even before it was put into the public domain by Wikileaks. As such, it was no longer inviolable and should have been admitted in evidence: [127 128]. Improper Motive Lord Mance (with whom Lord Neuberger, Lord Clarke, Lord Sumption and Lord Reed agree) concludes that the Court of Appeal was correct to conclude that the Administrative Courts ruling that the cable was inadmissible had no material effect on the outcome of proceedings and was not a ground for allowing the appeal or for concluding that the motivation for creating the MPA was improper [49]. The appropriate test is whether the admission of the cable for use in cross examination and to weigh against other evidence could have made a difference (however, the precise test must depend on the context, including how well placed the court is to judge the effect of any unfairness) [23 24]. This is in substance how the Court of Appeal approached the issue [24]. The Administrative Court undertook a full and careful review of the genesis and development of, and decision to announce, the MPA and no take zone [24]. Neither further cross examination on the cable, nor the cable itself admitted as evidence, would have led to any different outcome before the Administrative Court [42]. The Administrative Court heard cross examination of Mr Roberts and Ms Yeadon on important passages of the cable [37]. Both gave evidence that was generally and substantially consistent with the cable [39]. The cable is at the very lowest ambiguous as to whether references to resettlement were uttered in circumstances indicating that they had a role in motivating the proposal for an MPA. It seems very unlikely that a British civil servant would have disclosed an improper motivation of this nature, rather than outlining the practical consequences of an MPA which is what would have concerned the Americans [40]. Furthermore, even if Mr Roberts and/or Ms Yeadon did have and voice illegitimate motives for the proposal for an MPA, this was not apparent and there is no conceivable basis for thinking that this affected the ultimate decision to create the MPA, which was taken personally by the Respondent after presentation to him on a basis to which no objection is taken [43 49]. Lord Kerr (with whom Lady Hale agrees) dissents on the issue of improper motive. They would have allowed the appeal and remitted the case on limb (i). They consider that the Court of Appeal should have recognised that there was a substantial possibility that the Administrative Court would have taken a different view of the evidence of Mr Roberts and Ms Yeadon if they had admitted the cable and the case had proceeded to its conventional conclusion [121 and 128]. The correct test to be applied by the Court of Appeal is what might have happened if the cable was admitted in evidence not what would have happened [106 112]. The exclusion of the cable restricted the cross examination of Mr Roberts and Ms Yeadon because it was not possible to challenge their testimony where it was inconsistent, on the basis that the document was genuine [91]. Excluding the cable from evidence also meant that it did not rank as independent material and as a significant counterweight to the FCO witnesses testimony [93]. Further, there was an equally substantial possibility that the Court of Appeal would have concluded that the Respondents decision could be impugned because it was taken on a misapprehension of the true facts and circumstances [121]. Fishing Rights Lord Mance (with whom all of the other Justices agree) considers that permission to appeal should be given on this issue, but the appeal dismissed [50 and 63]. The absence of any mention of Mauritian fishing rights, whether by reference to an undertaking given by the UK Government and preferential treatment of Mauritian registered or owned vessels or evidence about such rights, does not undermine the Governments consultation so as to justify setting it aside. The creation of a no fishing MPA would obviously affect inshore fishing and threaten the livelihood of vessels which had previously been licensed to fish in territorial waters. It was open to Mauritius to raise this objection in response to the consultation, but it did not. It would be inappropriate to treat the consultation process as invalid when the party to whom the rights allegedly belonged had full opportunity to assert them. There is also no reason to believe that the ultimate decision would or could have been any different if the consultation had specifically drawn attention to the possible existence of Mauritian fishing rights [62 and 122]. The UN Convention on the Law of the Sea arbitral tribunals finding that such fishing rights do actually exist and their effect in domestic law, as regards the MPA or no take zone, was not relied on or capable of being relied on before the Supreme Court or relevant to the issues arising [50 57, 63].

This appeal concerns qualified security of tenure enjoyed by business tenants, pursuant to Part II of the Landlord and Tenant Act 1954 (the Act). Section 24(1) of the Act provides a procedure to landlords for contesting the grant of an application for a new tenancy. The ground for opposition in issue on this appeal is that under section 30(1)(f) (ground (f)), which provides as follows: that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding, or a substantial part of those premises, or to carry out substantial work on the construction of the building or part thereof and that he could not reasonably do so without obtaining possession of the holding. The premises in issue are the ground floor and basement of 80 Jermyn Street in the St Jamess area of London. The appellant, the tenant, is a textile dealership and consultancy. The appellant occupies the ground floor and basement under an underlease for a 25 year term from 2 January 1989 and uses them as a retail art gallery, showroom and archive. The rest of the building is occupied and managed by the respondent, the landlord, as a hotel. Planning permission is required for any material change of use. On 16 March 2015, the tenant served statutory notices requesting the grant of a new tenancy. On 15 May 2015, the landlord served a statutory counternotice opposing the grant of a new tenancy under section 30(1)(f) of the Act. On 8 June 2015, the tenant applied for an order in the Central London County Court. A preliminary issue raised was whether that ground of opposition was made out. The landlords defence put forward successive schemes reflecting the work it intended to carry out. It was accepted by the landlord that the proposed scheme of works was designed with the material intention of undertaking works that would lead to the eviction of the tenant regardless of the works commercial or practical utility and irrespective of the expense. The third scheme, which was in issue on this appeal: (i) omitted external works which would have required planning permission and (ii) added more extensive internal works, many of which were objectively useless. The estimated cost of the works to the landlord was 776,707 (excluding VAT), plus 324,000 in statutory compensation. It was common ground that the proposed works had no practical utility other than eviction. His Honour Judge Saggerson in the County Court considered that the landlord genuinely intended to carry out the works and that ground (f) was made out. On appeal to the High Court, Mr Justice Jay agreed, but gave permission for a leap frog appeal to this Court (by passing the Court of Appeal). The Supreme Court unanimously allows the appeal, deciding that ground (f) cannot be invoked. Lord Sumption gives the leading judgment, with which Lady Hale, Lady Black and Lord Kitchin agree. Lord Briggs gives a concurring judgment, with which Lady Black and Lord Kitchin also agree. Lord Sumption considers ground (f) requires a firm and settled intention to carry out the scheme of works the landlords purpose or motive is immaterial except to test whether the intention required by section 30(1)(f) exists [16]. It is irrelevant whether a landlords intention is reasonable or whether reasonable changes to the scheme could be made so as to allow the tenants continued possession [15]. This appeal does not turn on the landlords motive or purpose, nor on an objective assessment of the reasonableness of the proposed scheme of works, but on what it is that the landlord must intend if ground (f) is to apply [17]. The reason why the landlords approach cannot satisfy ground (f) is not merely the conditionality of its intention to do the proposed works, but the nature of the condition. Ground (f) assumes that the landlords intention to demolish or reconstruct the premises is obstructed by the tenants occupation. This is exemplified by (i) the words could not reasonably do so without obtaining possession of the holding in section 30(1)(f) and (ii) section 31A, which precludes a finding that ground (f) has been satisfied if the works can reasonably be carried out by exercising a right of entry that the tenant is willing to include in the terms of the new tenancy [19]. It follows that the landlords intention to carry out the works cannot be conditional on whether the tenant chooses to assert his claim to a new tenancy. The intention to demolish or reconstruct the premises must exist independently of the tenants statutory claim to a new tenancy [19]. On the facts, the tenants possession of the premises did not obstruct the landlords intended works and the landlord did not intend to carry them out if the tenant persuaded the court that the works could reasonably be carried out while he remained in possession [19]. The entire value of the proposed scheme lies in removing the tenant and not in any benefit to be derived from reconstruction itself [17]. Although not directly relevant in itself, the landlords motive or purpose may be evidence of (i) his genuine intention to carry out the proposed works and (ii) the conditional character of that intention. Similarly, a lack of utility of works may allow an inference as to the conditional character of the landlords intention [21]. Lord Briggs agrees with Lord Sumption that the appeal should be allowed [24]. He clarifies that the Courts decision does not depart from the rule laid down by the House of Lords in Bettys Cafs Ltd v Phillips Furnishing Stores Ltd (No.1) [1959] AC 20 that whether the landlord had the requisite intention to rely on ground (f) falls to be assessed at the time of the hearing, not at any earlier date [25]. Lord Briggs explains that examining evidence as to the landlords purpose or motive is likely to be a valuable means of testing not merely the genuineness (i.e. honesty) but also the conditionality of the landlords intention, so as to ascertain whether it is in accordance with the statutory objective behind section 30(1)(f) [26 31].

These appeals concern the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points based system of immigration control. Tier 4 deals with the grant of leave to enter or remain in the United Kingdom to migrants to the UK from outside the European Economic Area for the purpose of study. The essential requirement of the Tier 4 scheme was that the migrant should have been sponsored by an educational institution holding a sponsors licence. This requirement was laid down in Part 6A of the Immigration Rules, which dealt with the requirements to be satisfied by migrants applying for leave to enter or remain for the purpose of study. The criteria for licensing sponsors and the duties of sponsors once licensed were not prescribed in the Immigration Rules, but only in the Tier 4 Sponsor Guidance issued by the Secretary of State. Section 3(2) of the Immigration Act 1971 (the Act) provides that the Secretary of State shall lay before Parliament rules as to the practice to be followed in regulating the entry and stay in the UK of persons required under the Act to have leave to enter. Part 6A of the Immigration Rules was laid before Parliament under section 3(2) of the Act, but the Sponsor Guidance was not. New College London was a licensed Tier 4 sponsor until December 2009 when its licence was suspended by the Secretary of State on the ground that it was in breach of its duties as sponsor as set out in the Sponsor Guidance. Its licence was subsequently revoked. West London Vocational Training College applied for Highly Trusted Sponsor status in accordance with the Sponsor Guidance and was refused in August 2012. The effect of that refusal under the terms of the then current Sponsor Guidance was that it could not be a licensed Tier 4 sponsor. Both applicants sought to challenge these decisions by way of judicial review. Both failed in the High Court and in the Court of Appeal. Their case was that, so far as the Sponsor Guidance contained mandatory requirements for sponsors, it had to be laid before Parliament, and that in making decisions by reference to it without having done this, the Secretary of State acted unlawfully. The Supreme Court unanimously dismisses the appeals. Lord Sumption (with whom Lords Hope, Clarke and Reed agree) gives the lead judgment. Lord Carnwath adds a concurring judgment agreeing with the result but differing as to some of the reasoning. The criteria for sponsor licensing contained in the Sponsor Guidance were properly to be described as rules, but they were not required to be laid before Parliament under section 3(2) of the Act because that requirement related only to rules regulating the grant of leave to enter or remain in the UK have to be satisfied by the migrant. The Guidance is directed only to the licensing of sponsoring institutions [23, 26]. If the provisions of the Act do not apply, it does not follow that there is no power to have such a system at all [23, 27]. The statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors [28]. The Act does not prescribe the method of immigration control to be adopted. It cannot have been Parliaments intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the grant or refusal of leave to enter or remain in the UK. Since the Secretary of State is entitled to prescribe and lay before Parliament rules for grant of leave to enter or remain in the UK which depend upon the migrant having a suitable sponsor, then she must also be entitled to take administrative measure for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act [29]. This right is not unlimited: the Secretary of State cannot adopt measures which are inconsistent with the Act or Immigration Rules or adopt measures which are coercive, infringe legal rights or contravene the general constraints on administrative action imposed by public law. However, the Tier 4 sponsor system was not coercive but voluntary. The rules contained in the Sponsor Guidance were, in reality, conditions of participation and sponsors seeking the advantages of licences could not complaint if they were required to adhere to them. [CA29] Lord Carnwath agreed with the result, but held that the sponsor licensing scheme was an adjunct, not of the immigrant control system in general, but of the specific function of providing entry under section 1(4) of the Act. This provides for the admission of persons not having the right of abode for the purpose of study subject to such restrictions as may be provided by the rules. This leads back to section 3(2) of the Act which prescribes the procedure for making the rules [37]. Lord Carnwath differed as to the practical effect of the decision in respect to New College. The decision did not confer a status which they did not have but revoked an existing licensing, and an order setting aside that decision would have left the existing licence in place. No party had sought to challenge the validity of that original licence [44 6].

The Appellants (Mr and Mrs H) are both British citizens. The United States has requested their extradition under the Extradition Act 2003 to face trial in Arizona on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. The Appellants argue that it would be incompatible with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights for them to be extradited. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is one year old. Mr H is the father of the four younger children. The Appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. Mr H is also the father of two other children, of different mothers. Allegations of sexual abuse of the elder daughter by Mr H when they were living in Arkansas led to her being taken into care for a period of time. Mr H moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. In 2004, after Mr H had moved to England and formed a relationship with Mrs H (then Miss S), the High Court in Middlesbrough found that Mr H had indeed sexually abused his eldest daughter on a number of occasions in Arkansas and Texas in 1993 and 1994. It made an order against Mr H that he was to have no contact whatsoever with Miss Ss three elder children. This order was ignored entirely by both Mr H and Miss section The extradition proceedings first came before the sheriff on 31 January 2007 and the Appellants were remanded in custody. They were both released on bail after seven months in custody on 31 August 2007. Mr H was returned to custody on 26 April 2011 after failing to attend a court hearing. Mrs H was again remanded in custody on 29 July 2011 when the Appellants appeals were refused. She was released on bail on 12 August 2011, but Mr H remains in custody. While the Appellants were in custody, the children were looked after by Mrs Hs mother, as well as by other friends and family. Initially following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children now regularly go to the prison with her. The two elder children are reluctant to visit. Within a few weeks of her release from custody, Mr and Mrs Hs relationship broke down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register in December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. On 29 May 2008 the Scottish Ministers ordered the Appellants to be extradited to the United States. The Appellants appealed to the High Court of Justiciary. The hearing of the appeals was delayed on a number of occasions as a result of changes of legal representation by both Appellants. Mrs Hs appeal was also further delayed by pregnancy complications and the birth of her two youngest children, and by the need for investigations into her mental health. Mr Hs appeal was further delayed by an apparent suicide attempt. The Appellants appeals were dismissed on 29 July 2011. The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lord Hope. Lord Brown, Lord Mance, Lord Judge and Lord Wilson give short concurring judgments. There is no appeal to this court against the determination of the High Court of Justiciary under the 2003 Act. But the Appellants are entitled to exercise their right of appeal under Scotland Act, as the question whether it could be incompatible with article 8 for them to be extradited raises a devolution issue. So the appeal is competent. The offences that have been alleged against the Appellants are very serious, attracting penalties of up to 20 years imprisonment. The allegation is of a sustained and deliberate course of unlawful conduct, during which the Appellants are said to have sold around $133,000 worth of chemicals to about 400 customers in the United States over a two year period [22 23]. Great weight must be given to the public interest in giving effect to a request for extradition. The more serious offence the greater will be that weight. The approach to Article 8 rights in extradition cases need not be radically different from that adopted in deportation or expulsion cases. Where, as here, the family life of children is involved, the best interests of the children are a primary consideration. The question is therefore: Is the Article 8 right outweighed by the strength of any other considerations? [49]. In view of the likely length of their sentences following conviction, and the lack of certainty as to the possibility of a transfer to prison in Scotland, the prospect has to be faced that in the event of conviction the Appellants are likely to be kept apart from their children, and their children perhaps apart from each other, for a very long time [53]. In relation to Mr H, the childrens family relationship with him has effectively been brought to an end by the breakdown of the parents relationship; the two elder childrens refusal to visit him in prison; the 2004 order that he have no contact with Mrs Hs three elder children; and the placing of all six children on the child protection register from July 2009 to December 2011. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. Mr Hs case does not come close to meriting his discharge under section 87(2) of the 2003 Act [53 54]. Mrs Hs case is more difficult. The childrens best interests clearly lie in continuing to live with their mother. There is a risk that they will be taken into care after she is extradited and that, if this happens, they will no longer be able to live together. Resuming family life after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for practical purposes, now fatherless [57]. On the other hand there is no escape from the fact that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. It is well established that extradition may amount to a justified interference under Article 8(2) if it is in accordance with the law, is pursing the aims of the prevention of crime or disorder and is necessary in a democratic society. If there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment [58 59]. Cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so the court must be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country[60 & 65]. However, there are strong practical reasons for concluding that the United States, where most of the witnesses reside and the degree of criminality involved is best assessed, is the proper place for the Appellants to be tried. Taking all of the relevant considerations into account, it would not be appropriate for the Appellants to be tried here. Nor would it be acceptable for Mrs H not to be prosecuted at all for the crimes with which she has been charged. And it would not be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution. The proper forum in which both prosecutions should be brought is the United States. The best interests of the children, even when weighed together with Mrs Hs own Article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the extradition request [70 71].

The Respondent, Mr Franco Vomero, is an Italian national who has lived in the United Kingdom since 1985. In 1998 his marriage to his British wife broke down, and he moved into accommodation with Mr Edward Mitchell. In 2001, he killed Mr Mitchell. In 2002 he was sentenced to eight years imprisonment for manslaughter. In 2006 he completed the custodial part of his sentence. On 23 March 2007 the Home Secretary decided to deport him under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006. Regulation 21 gives effect to articles 27 and 28 of Directive 2004/38/EC (Directive). In October 2007 the Immigration and Asylum Tribunal (IAT) dismissed Mr Vomeros appeal against the deportation decision. A Senior Immigration Judge ordered that the IATs determination be reconsidered. On reconsideration, the IAT allowed Mr Vomeros appeal. The Court of Appeal dismissed the Secretary of States appeal against the second IAT determination. The Secretary of State appealed to the Supreme Court. Following an initial hearing of his appeal in 2016, the Supreme Court referred a number of questions to the Court of Justice of the European Union (CJEU). The Supreme Courts reasons for making the reference were explained in a judgment given by Lord Mance. After the CJEU delivered its judgment on 17 April 2018, the Supreme Court held a further hearing on 7 February 2019. The Supreme Court unanimously allows the appeal. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. In the reference, the Supreme Court asked whether a right of permanent residence (RPR) is a prerequisite for enhanced protection against expulsion pursuant to article 28(3)(a) of the Directive, as the Court of Appeal had held. Pursuant to that article, an expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member states, if they have resided in the host member state for the previous ten years. The CJEU held that RPR is a prerequisite for this, because article 28 provides a graduated scheme of protection, under which the degree of protection reflects the individuals degree of integration into the host member state. [26] In the initial judgment of the Supreme Court, Lord Mance concluded that Mr Vomero had not acquired a right of permanent residence in the UK by the date of the decision to deport him, notwithstanding his many years of residence, because his imprisonment between 2001 and 2006 had the result that he had not resided legally in the UK for a continuous period of five years as at 30 April 2006, which is when the Directive was due to be implemented, or any later date before the decision to deport him. [30] It is now argued on Mr Vomeros behalf that it was wrong for the Supreme Court to conclude that he did not have RPR, because the CJEU observed in the course of its judgment that the question referred to it was based on the premise that he does not have RPR, and that it did not have all the information necessary in order to assess whether the premise was correct. In response, the Secretary of States maintains that Lord Mances conclusion was correct but concedes that it will be open to Mr Vomero to argue that he has acquired a right of permanent residence since the date of the decision to deport him. [31] [32] The proposition which the CJEU said that it was unable to assess, namely that Mr Vomero does not have RPR, is not the same as Lord Mances conclusion, namely that Mr Vomero had not acquired RPR by 23 March 2007. [33] The same is true of the Advocate Generals preliminary observations. [34] The leading authority on the significance of imprisonment in relation to the acquisition of RPR is Onuekwere v Home Secretary (Case C 378/12) [2014] 1 WLR 242, where the CJEU held that periods of imprisonment could not be taken into account for the purpose of calculating the length of the claimants residence in the UK, and interrupted the continuity of such residence. [42] The present case differs from Onuekwere in that Mr Vomero had completed more than five years of continuous legal residence in the UK before he was imprisoned in 2001. However, the period of imprisonment for more than two years which he had undergone by 30 April 2006 prevented him from acquiring a right of permanent residence on that date, in the same way as absence from the UK or being out of work for more than two years would have done, following Secretary of State for Work and Pensions v Lassal (Case C 162/09) [2001] 1 CMLR 31 and Secretary of State for Work and Pensions v Dias (Case C 325/09) [2011] 3 CMLR 40. Accordingly, the necessary period of five years continuous legal residence could not begin any earlier than when he completed the custodial part of his sentence, and five years continuous legal residence had not been completed by the time the decision to deport him was made. [45] It will be necessary for the tribunal, when this case is remitted to it, to consider not only whether Mr Vomero has acquired a right of permanent residence since the date of the decision to deport him, but also whether there still exist grounds of public policy or public security within the meaning of article 28(1) of the Directive on the basis of which his expulsion could be justified. [47]

The parties entered into a joint venture agreement on 29 January 1981. Article 8 provided that any dispute arising from the joint venture should be resolved by arbitration before three arbitrators, each of whom was required to be a respected member of the Ismaili community (the Requirement). The Ismaili community comprises Shia Imami Ismaili Muslims and is led by the Aga Khan. The issue arising on this appeal is whether the Requirement, and/or the arbitration agreement as a whole, became void when the Employment Equality (Religion or Belief) Regulations 2003 (the Regulations) came into force on 2 December 2003, as an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services. The joint venture ended in 1988. The division of the joint venture assets was largely determined by a three man panel appointed in accordance with the arbitration agreement, but some matters remained in dispute. On 31 July 2008 Mr Hashwanis solicitors wrote to Mr Jivraj asserting that a balance of over US$4.4m was due to him and giving notice of his intention to appoint Sir Anthony Colman, a retired judge of the Commercial Court, as an arbitrator. Sir Anthony was not a member of the Ismaili community. Mr Jivraj commenced proceedings for a declaration that his appointment was void as a breach of the Requirement. Mr Hashwani sought an order that Sir Anthony be appointed as sole arbitrator. The High Court (David Steel J) held that the appointment of arbitrators fell outside the scope of the Regulations as they were not employed or, if they were, that the Requirement fell within the exception permitted for genuine occupational requirements which it was proportionate to apply. Had he held that the Requirement was void, he would have held that the arbitration agreement as a whole was void. The Court of Appeal allowed Mr Hashwanis appeal in relation to the Regulations, finding that arbitrators were employed and that there had been unlawful religious discrimination. However, they concluded that the agreement should not be enforced with the Requirement severed from it and, accordingly, Sir Anthonys appointment was invalid (the severance issue). Mr Jivraj appealed to the Supreme Court in respect of the finding that the clause was void by reason of the Regulations. Mr Hashwani cross appealed on the severance issue. The Supreme Court unanimously allows the appeal on the ground that an arbitrator is not a person employed under a contract personally to do work within the meaning of the Regulations, which do not therefore apply. The majority (Lord Phillips, Lord Walker, Lord Clarke and Lord Dyson) also find that the Requirement would have fallen within the exception for genuine occupational requirements if the Regulations had applied. Lord Mance preferred not to deal with this issue as it did not arise in the light of the finding that the Regulations did not apply. The judgment of the majority is given by Lord Clarke. The High Court judge had correctly concluded that an arbitrator was not employed within the scope of the Regulations [22]. He or she fell outside the definition of a worker laid down by the case law of the European Court of Justice and was instead an independent provider of services who was not in a relationship of subordination with the person who received the services [34][40]. The dominant purpose of the contract was not the sole test for determining employment, although it might be relevant in arriving at the correct conclusion on the facts of a particular case [39]. An arbitrator was a quasi judicial adjudicator whose duty was not to act in the particular interests of either party [41]. The dominant purpose of the appointment, insofar as it was relevant, was the impartial resolution of the dispute [45]. The question of whether the Requirement was a genuine occupational requirement for the job for the purposes of the exception in regulation 7(3) of the Regulations did not therefore arise. However, whether a particular religion or belief was a legitimate and justified requirement of an occupation was an objective question for the court [59]. Arbitration was more than the application of a given national law to a dispute and a stipulation that an arbitrator be of a particular religion or belief can be relevant to the manner in which disputes are resolved [61]. In this case, the judge had correctly found that the Ismaili community had demonstrated an ethos, based on religion, for dispute resolution contained within that community [68]. The test was not one of necessity. The parties could properly regard arbitration before three Ismailis as likely to involve a procedure in which parties could have confidence and as likely to lead to conclusions of fact in which they could have particular confidence [70]. The severance issue did not therefore arise [72].

Widowed parents allowance (WPA) is a contributory, non means tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. Under s 39A Social Security Contributions and Benefits (Northern Ireland) Act 1992 (s 39A) the widowed parent can only claim the allowance if he or she was married to or the civil partner of the deceased. The issue in this appeal is whether this requirement unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status, contrary to article 14 of the European Convention on Human Rights (ECHR) when read with either the right to respect for family life under article 8, or the protection of property rights in Article 1 of the First Protocol (A1P1). Ms McLaughlins partner, John Adams, died on 28 January 2014. They were not married but had lived together for 23 years. They had four children, aged 19, 17, 13 and 11 years when their father died. He had made sufficient contributions for Ms McLaughlin to be able to claim WPA, had she been married to him. Her claims were refused by the Northern Ireland Department of Communities. She applied for judicial review of that decision on the ground that s 39A was incompatible with the ECHR. The judge in the High Court agreed and made a declaration that s 39A was incompatible with article 14 read with article 8. The Court of Appeal, however, unanimously held that the legislation was not incompatible with article 14, read with either article 8 or A1P1. Ms McLaughlin therefore appealed to the Supreme Court. The Supreme Court by a majority of 4 to 1 (Lord Hodge dissenting) allows the appeal and makes a declaration that s 39A is incompatible with article 14 of the ECHR read with article 8, insofar as it precludes any entitlement to WPA by a surviving unmarried partner of the deceased. Lady Hale, with whom Lord Mance, Lord Kerr and Lady Black agree, gives the substantive judgment of the majority. Lord Mance, with whom Lady Hale, Lord Kerr and Lady Black agree, gives a short concurring judgment. Lord Hodge gives a dissenting judgment. Article 14 secures the rights and freedoms of the ECHR without discrimination. It raises four, somewhat overlapping, questions: Do the circumstances fall within the ambit of one or more of the Convention rights? A breach of a right is not necessary, but the facts must fall within the ambit of one or more of them. It is clear that denial of social security benefits falls within the ambit of A1P1 [16]. WPA also falls within article 8 as it is a positive measure by the state demonstrating its respect for family life [19]. Has there been a difference in treatment between two persons in analogous situations? In a decision in 2000, Shackell v United Kingdom (App 45851/99), the European Court of Human Rights (ECtHR) ruled inadmissible a complaint that a denial of widows benefits to unmarried surviving partners was discriminatory, holding that marriage conferred a special status and was different from cohabitation. In the present case, however the relevant facet of the relationship is not the public commitment but the co raising of children [26]. The purpose of WPA is to benefit the children. It makes no difference to the children whether or not the couple were married to one another, but their treatment is very different [27]. Lord Mance considers that the reasoning of the ECtHR in Shackell failed to address the clear purpose of the widows benefits in that case, namely to cater for the interests of any relevant child, and Shackell should not therefore be followed by the Supreme Court [49]. Is that difference of treatment on the ground of a relevant status? It is well established that being unmarried is a status for the purpose of Article 14, just as being married can be [31]. Is there objective justification for that difference in treatment? This question depends on whether it pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved [32]. The promotion of marriage and civil partnership is a legitimate aim [36], and WPA is part of a (small) package of social security measures which privileges marriage and civil partnership [37]. However, it was not a proportionate means of achieving this legitimate aim to deny Ms McLaughlin and her children the benefit of Mr Adams contributions because they were not married to each other. WPA exists because of the responsibilities of the deceased and the survivor towards the children, and its purpose is to diminish the financial loss caused to families with children by the death of a parent [39]. This conclusion is reinforced by the international obligations to safeguard childrens rights, to which the UK is party, which inform the interpretation of the ECHR rights; and it is noteworthy that in most other member states survivors pensions are paid directly to the children irrespective of birth status [41]. Remedy The exclusion of all unmarried couples from receipt of WPA will not always amount to unjustified discrimination, but it will inevitably do so in a legally significant number of cases, which is sufficient to require the court to make a declaration of incompatibility under s 4(2) of the Human Rights Act 1998. It will be for the relevant legislature to decide whether or how the law should be changed [43]. Lord Hodge, dissenting, would have held that the purpose of the provision of WPA is to assist the survivor rather than a benefit for bereaved children [58, 73 78]. The circumstances did not justify departing from the consistent line of authority from the ECtHR confirming the difference of status between marriage/civil partnership and cohabitation [64], so the situations were not analogous [79]. Even had they been, the difference in treatment in the provision of a contributory rather than means tested benefit, not directed to need, was not manifestly disproportionate, but objectively justified [85 87].

This appeal concerns the question whether the power to create criminal offences granted to Her Majestys government by section 1 of the United Nations Act 1946 (the 1946 Act) may only lawfully be exercised at or about the time of the relevant resolution by the Security Council of the United Nations which such order is implementing. At the time of the hearing of this appeal, the appellants, Forsyth and Mabey, were awaiting criminal trial on a number of charges, of which one is an offence of making funds available to Iraq contrary to the Articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 (the Order). As a preliminary issue prior to the trial, the appellants sought to establish that the Order creating the offence of making funds available to Iraq was ultra vires section 1 of the 1946 Act. Section 1 grants power to the government to implement resolutions of the Security Council by an executive order without any parliamentary process. The appellants argument was that such a wide executive power could be justified only if the resolutions of the Security Council were implemented urgently and the power, therefore, must be construed as subject to its being exercised within a very short timescale. In essence, the appellants maintained that unless the power to make an order under the 1946 Act is exercised at or about the same time as the relevant Security Council resolution, that power is lost by the passage of time. The Order in question was made 10 years after the relevant resolution. The appellants lost both in the Crown Court and the Court of Appeal. The matter came before this court on 6 December 2010 when, at the outset of the hearing, the appellants were granted permission to appeal; at the conclusion of the hearing the appeal was dismissed for reasons to be given later. The present judgment contains those reasons. Lord Brown delivered the judgment of the court which held that the power conferred on the government by section 1 of the 1946 Act cannot be restricted by confining its exercise within an artificially restricted timeframe. The suggested analogy between the case of A v HM Treasury which was concerned with proper limits of the content of orders made pursuant to section 1 of the 1946 Act and the present appeal seeking to impose limits upon the time within which the power is properly exercisable is false: [9]. Unlike the case of A, where Hansard needed to be examined to confirm the absence of parliamentary intention to permit fundamental human rights to be overridden, there is no good reason to look behind the actual words of the 1946 Act in this case, and indeed a real risk of breaching parliamentary privilege if one does. Had Parliament intended to confine the order making power to urgent use, one would have expected it to be clearly provided for in the 1946 Act: [10] [11]. Instead, the 1946 Act is entirely silent on the question and indeed provides for a power to vary the existing order without placing any time limitations upon this power of variation: [12]. The history of how the Order in the present case came to be made so long after the UN resolution it was implementing confirms that it would be inappropriate to limit the exercise of the power conferred by the 1946 Act within a restricted timeframe by demonstrating that Security Council resolutions are not simply one off measures requiring immediate implementation by member states which then recede into history: [18].

Section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) requires that employers which propose to dismiss as redundant twenty or more employees at one establishment within a period of 90 days or less have an obligation to consult with the representatives of any employees who may be affected. In order to deal with a budget deficit in the year 2009 2010 the University of Stirling proposed to make up to 140 of its permanent staff redundant. In accordance with section 188(1) of the 1992 Act, it undertook collective consultation with the relevant trade unions, including the University and College Union (the Union). However, it did not consider that it needed to include in the collective consultation process employees who were employed under limited term contracts (LTCs) which came to an end during the consultation period. The Union considered that employees on LTCs should have been included on the grounds that they had been dismissed as redundant and brought four test cases in the Employment Tribunal on this basis. The Employment Tribunal held that the employees in three of the four test cases had been dismissed as redundant for the purpose of the consultation requirement and that the fourth employee had not been dismissed at all. The Employment Appeal Tribunal held that all four of the test case employees had been dismissed, but that none of them had been dismissed as redundant. The Inner House agreed with the Employment Appeal Tribunal. The Supreme Court unanimously allows the Unions appeal and remits the case to the Employment Tribunal for consideration of the remaining issues. The Court considered that the issue of whether employees on LTCs, whose contracts come to an end within the relevant period have been dismissed as redundant depends upon two questions. The first question was whether the expiry and non renewal of an LTC amounts to a dismissal for this purpose. It was common ground between the parties that it did [15]. The second question was whether such a dismissal is for a reason not related to the individual concerned, which is the statutory definition of dismissal as redundant pursuant to section 195(1) of the 1992 Act. The Court held that it was. The fact that the employee had entered into an LTC could not mean that the dismissal was a reason related to the individual. In passing the 1992 Act, Parliament did not intend to narrow the scope of the consultation duty from situations where business ceased or was reduced. Further, Parliament had specifically legislated in order to encompass situations where employees are dismissed and offered new contracts on different terms. If the terms and conditions of employees employment contracts were reasons related to the individual concerned then such business rearrangements would not be covered [20]. The context and content of the duty to consult suggest that it is concerned with the needs of the business as a whole. While being on an LTC might be a criterion for selecting employees for dismissal, it is a collective description rather than a reason relating to the individual concerned [21]. Where an LTC comes to an end, the dismissal is the failure to offer the employee a new contract. The fact that it was an LTC, or even that the employee agreed to it, cannot by itself be a reason for the non renewal. The question is whether the reasons for the failure to offer a new contract relate to the individual or to the needs of the business [22]. A reason relates to the individual if it is something to do with him or something he has done. It is to be distinguished from a reason relating to the employer, such as the need to effect change in the business. The coming to an end of an LTC was a reason related to the employers business, not to the individual concerned [23].

Payment protection insurance (PPI) is sold to borrowers to cover the repayment of specific borrowing on the occurrence of an insured event, such as accidental injury. PPI used to be sold to borrowers as part of a package with the loan itself, with a single premium paid upfront and added to the amount borrowed. A high commission would be paid to intermediaries. Mrs Plevin took out a personal loan through LLP Processing (UK) Ltd (LLP). LLP proposed that she borrow 34,000 from Paragon Personal Finance Ltd (Paragon), repayable in instalments over ten years, and that she take out PPI for five years with Norwich Union, Paragons designated insurer. The PPI premium of 5,780 was payable at the outset and added to the amount of the loan. 71.8% of the premium was taken in commission: LLP retained 1,870 and Paragon retained 2,280. The Financial Industry Standards Association guide which LLP gave to Mrs Plevin told her that commission is paid by the lending company, but she was not told the amount of the commission or the identity of the recipients. Sections 140A to 140D of the Consumer Credit Act 1974 apply to Mrs Plevins loan and PPI. They allow a court to reopen a credit agreement which is unfair because of any of the terms of the agreement or a related agreement, the way in which the creditor has exercised or enforced his rights, or any other thing done (or not done) by, or on behalf of, the creditor (s 140A(1)(c)). Mrs Plevin argues that the relationship between herself and Paragon was unfair under s 140A(1)(c) because of (i) the non disclosure of the commissions and (ii) the failure of anyone involved to advise on the suitability of the PPI for her needs. Insofar as LLP committed these defaults, she says it did so on behalf of Paragon. The Insurance Conduct of Business Rules (ICOB Rules) are the statutory rules which regulate the insurance industry. They do not require insurance intermediaries to disclose commissions to their customers. They do require an insurance intermediary which makes a personal recommendation to a customer to buy an insurance contract to take reasonable steps to ensure that the recommendation is suitable for the customers demands and needs. Both the Manchester County Court and the Court of Appeal held that the non disclosure of the commission by LLP and Paragon and the failure by Paragon to assess the suitability of PPI for Mrs Plevin did not make the relationship unfair, because they were bound to do so by Harrison v Black Horse Ltd [2012] Lloyds Rep IR 521, where the presence or absence of a regulatory duty under the ICOB Rules had been treated as conclusive. The Court of Appeal in this case also held that LLPs failure to conduct a needs assessment of Mrs Plevin, in breach of the ICOB Rules, was something done by or on behalf of Paragon which made its relationship with Mrs Plevin unfair. The Supreme Court unanimously dismisses the appeal, but for reasons different from those given by the Court of Appeal. Lord Sumption delivers the sole judgment. He holds that the non disclosure of the amount of commissions and the identity of the recipients did make Mrs Plevins relationship with Paragon unfair under s 140A(1)(c) of the Consumer Credit Act 1974, but the failure to conduct a needs assessment of Mrs Plevin did not. The case is remitted to the Manchester County Court to decide what if any relief under s 140B should be ordered unless that can be agreed. The non disclosure of the commissions The Court of Appeals decision in Harrison v Black Horse Ltd [2012] Lloyds Rep IR 521 was wrong. The ICOB Rules are hard edged, imposing a minimum standard of conduct applicable in a wide range of situations and providing for damages in the event of breach, whereas s 140A of the Consumer Credit Act 1974 introduces a broader test of fairness which is a matter for the courts judgment and which potentially takes into account a much wider range of factors. They are asking different questions [14 17]. Applying s 140A, Lord Sumption concludes that the non disclosure of the commissions did make the relationship between Paragon and Mrs Plevin unfair. At some point, the commissions may become so large that the relationship cannot be regarded as fair if the customer is kept in ignorance. This case lay far beyond the tipping point. Mrs Plevin would have questioned whether the PPI represented value for money if she had been aware of the commission amounts and might not have taken out PPI at all [18]. This unfairness was the responsibility of Paragon, the only party which knew the size of both commissions [19 20]. Failure to assess the suitability of PPI insurance for Mrs Plevins needs Paragons own failure to conduct their own needs assessment of Mrs Plevin did not make its relationship with her unfair. The absence of a regulatory duty under the ICOB Rules was not conclusive, but it was highly relevant: Paragon could not reasonably be expected to perform a duty which the relevant statutory code assigned to someone else, namely LLP [26]. LLPs failure to conduct a needs assessment of Mrs Plevin could not be treated as something done by or on behalf of Paragon, because LLP was not acting as Paragons agent. The ordinary and natural meaning of the words on behalf of imports agency, and that is how the courts have ordinarily construed them. Nothing in this case demands a broader interpretation. The phrase by or on behalf of suggests that the act or omission must be done by the creditor itself, or by someone else whose acts and omissions engage the creditors responsibility as if the creditor had done or not done it itself. Further, the Consumer Credit Act 1974 makes extensive use of the technique of imputing responsibility to the creditor for the acts or omissions of other parties who are not (or not necessarily) the creditors agents, including in s 140A(3), and when it does so, it does so in clear terms. Finally, there would be no coherent criteria for determining what connection other than agency would be required between the creditor and the acts or omissions causing the unfairness [27 34].

The Appellants are all companies which belong to groups which have UK resident parents and also have foreign subsidiaries, both in the European Union and elsewhere. The purpose of the litigation was to determine various questions of law arising from the tax treatment of dividends received by UK resident companies from non resident subsidiaries, as compared with the treatment of dividends received from subsidiaries within wholly UK resident groups of companies. The provisions giving rise to these questions related to the system of advance corporation tax (ACT) and to the taxation of dividend income from non resident sources under section 18 (Schedule D, Case V) of the Income and Corporation Taxes Act 1988 (ICTA). The relevant provisions have since been amended or repealed, but the problems created by their existence in the past have not gone away. The Appellants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached article 43 (freedom of establishment) and article 56 (free movement of capital) of the EC Treaty, and that these breaches have caused them considerable loss. A previous reference to the Court of Justice of the European Union (CJEU) held that those principles had, at least in some respects, been breached. The issues in this appeal to the Supreme Court relate to the requirements under both EU and domestic law as to the availability of remedies for such breaches of EU law. It is common ground that two types of restitutionary remedies are available in domestic law in this situation: a claim for restitution of tax unlawfully demanded (under the Woolwich principle), and a claim for tax wrongly paid under a mistake (a DMG claim). EU law requires there to be an effective remedy for monies paid in respect of tax that has been unlawfully charged. In the present case, the Woolwich cause of action was now time barred. The limitation period for DMG mistake claims had been extended by section 32(1)(c) of the Limitation Act 1980 (LA). However, in June 2004, s320 of the Finance Act 2004 was enacted, retrospectively excluding the application of s32(1)(c) in relation to claims based on a mistake of law relating to a taxation matter, where the action was brought on or after 8 September 2003. In July 2007, s107 of the Finance Act 2007 came into force. It excluded the application of s32(1)(c) to any DMG claims brought before 8 September 2003. The Court of Appeal held: that the Woolwich restitution remedy was a sufficient remedy as EU law does not require that there must always be a remedy based on mistake; that the Woolwich restitution remedy met the requirements of EU law and was not affected by sections 320 and 107; that the restitution and damages remedies sought by the Appellants in respect of one part of the claim were excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970; and that section 32(1)(c) of the Limitation Act 1980 could be given a wider meaning so as to apply to a Woolwich claim. The Appeal raises the following specific issues: (1) Could Parliament lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action (section 320 FA 2004) and cancel claims made using that cause of action for the extended period (section 107 FA 2007)? In particular: (a) Would a Woolwich restitution remedy be a sufficient remedy for the repayment claims brought on the basis of EU law? (b) Whether or not a Woolwich restitution remedy would be a sufficient remedy, does EU law protect the claims which were made in mistake; and, specifically, did the curtailment without notice of the extended limitation period for mistake claims (section 320 FA 2004) and the cancellation of such claims in respect of the extended period (section 107 FA 2007) infringe the EU law principles of effectiveness, legal certainty, legitimate expectations and rule of law? (2) Are the restitution and damages remedies sought by the Appellants in respect of corporation tax paid under section 18 of the ICTA excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970? (3) Does section 32(1)(c) of the Limitation Act 1980 apply to a claim for a Woolwich restitution remedy? (4) Does the Woolwich restitution remedy apply only to tax that is demanded by the Revenue, and not to tax such as ACT which is payable on a return; and, if so, what amounts to a demand? The Supreme Court unanimously dismisses the appeal on issues (3) and (4), and allows the appeal on issue (2). On issue (1), a reference is made to the CJEU for a preliminary ruling under article 267 Treaty on the Functioning of the European Union. Leading judgments are given by Lord Hope, Lord Walker, Lord Sumption and Lord Reed, with shorter judgments by Lord Brown, Lord Clarke and Lord Dyson. Issue (1) The central question in the appeal is whether EU law requires only that the member state must make available an adequate remedy which meets the principles of effectiveness and equivalence, or whether it requires every remedy recognised in domestic law to be available so that the taxpayer may obtain the benefit of any special advantages that this may offer on the question of limitation [13, 38]. The majority of the Court (Lord Sumption and Lord Brown dissenting [123 & 142]) holds that the Woolwich remedy on its own was not sufficient to meet the requirements of effectiveness and equivalence; an effective remedy was also required in the DMG mistake cause of action. The principle of equivalence requires that the rules regulating the right to recover taxes levied in breach of EU law must be no less favourable than those governing similar domestic actions. It must follow, if the means of recovering of taxes levied contrary to EU law are to match those in domestic law, that both remedies should be available [21, 212]. The retrospective application of the section 320 FA 2004 limitation period was therefore not compatible with EU law as it infringed the principles of equivalence and effectiveness, and possibly also the principle of legitimate expectations [15, 22, 115, 135 136, 140, 209, 241]. In relation to s107 FA 2007, the Court unanimously holds that, by 2006, the Appellants had acquired a legitimate expectation that their entitlement to have their DMG claims decided by a court would not be removed from them by the introduction without notice of a limitation period that was not fixed in advance. So it was not lawful for Parliament to cancel claims made using the mistake cause of action for the extended period [15, 22, 115, 125, 129, 140, 203, 209, LR 34 35, ]. Since the Court is divided on the question as to whether EU law requires that both remedies should be available to the Appellants so that they can choose the remedy that best suits their case for reimbursement, the matter is not acte clair. A reference to the CJEU is necessary [23]. Issue (2) The question is answered in the negative. Section 33 can be given an interpretation in conformity with EU law by not construing it as impliedly setting itself up as an exclusive provision. The common law claim in unjust enrichment remains available [119, 205]. The appeal on this issue is allowed. Issue (3) The question is answered in the negative. The extension to the limitation period under section 32(1)(c) should not be read widely so as to apply to Woolwich claims. The Court should not seek to develop the law by broadening the interpretation of an action for relief from the consequences of a mistake [62, 186]. The appeal on this issue is dismissed. Issue (4) The question is answered in the negative. The Woolwich restitution remedy is not limited to tax that is demanded by the Revenue, but is available to cover all sums paid to a public authority in response to (and sufficiently causally connected with) an apparent statutory requirement to pay tax which (in fact and in law) is not lawfully due [79, 174]. The appeal on this issue also is dismissed.

This appeal concerns the arrest and detention of four individuals on 29 April 2011, the day of the wedding of the Duke and Duchess of Cambridge. The appellants were part of a larger group of claimants but it was agreed before the Court of Appeal that their cases should be treated as test cases [1, 3]. The appellants were arrested in separate incidents at various places in central London on the grounds that their arrest was reasonably believed to be necessary to prevent an imminent breach of the peace. They were all released without charge once the wedding was over and the police considered the risk of a breach of the peace had been passed. Their period of custody ranged from 2.5 to 5.5 hours [3]. Complaints regarding the lawfulness of the policy for the policing of the royal wedding and the grounds for, and necessity of, the appellants arrest were dismissed by the Administrative Court and these issues were not in dispute on appeal [5]. The appellants also alleged that their detention violated their rights under article 5 of the European Convention on Human Rights which provides that no one shall be deprived of their liberty save in the certain specific circumstances provided for in subsection (1). The police argued that the appellants detention was lawful under article 5(1)(b), which allows for the lawful detention of a person in order to secure the fulfilment of any obligation prescribed by law, or under article 5(1)(c), which allows for the detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. For the purposes of article 5 a breach of the peace counts as an offence, despite not being classified as an offence under English law [8]. The Administrative Court found that the appellants arrest and detention were lawful under article 5(1)(c). It interpreted the phrase effected for the purpose of bringing him before the competent legal authority as applicable only where the purpose of the arrest was to bring the person before the court on reasonable suspicion of having committed an offence and not where the purpose of the arrest was to prevent a commission of an offence [8]. It felt it was therefore unnecessary to determine whether the arrest was lawful under article 5(1)(b) [9]. The Court of Appeal agreed but for different reasons. In light of the decision of the Strasbourg court in Ostendorf v Germany (2015) 34 BHRC 738, which post dated the decision of the Administrative Court, it read the phrase effected for the purpose of bringing him before the competent legal authority as applying to the whole of article 5(1)(c). However, it inferred that the officers who arrested and detained the appellants appreciated the appellants would not be lawfully detained beyond the point at which it was reasonably practicable to take them before the magistrates court. The appellants had therefore been arrested and detained with the intention of bringing them before the competent legal authority within the meaning of article 5.1(c) [11]. The Supreme Court unanimously dismisses the appeal. Lord Toulson, with whom the other Justices agree, gives the lead judgment. The fundamental principle underlying article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control. However, article 5 must not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others [29]. An appreciation of the reality and practical implications is central to the principle of proportionality embedded in both article 5 and in the common law relating to arrest for breach of the peace [30]. The ability of the police to perform their duty would be severely hampered if they could not lawfully arrest and detain a person for a relatively short time (too short for it to be practical to take the person before a court) [31]. The Strasbourg case law on how such a preventative power can be accommodated within article 5 is not clear and settled and the Strasbourg court in Ostendorf was divided. Whilst the Supreme Court must take into account the Strasbourg case law, the final decision is the Courts [32]. The Court prefers the view of the minority of the Strasbourg court in Ostendorf that article 5(1)(c) is capable of applying to a case of detention for preventive purposes followed by early release [33]. It would be perverse if the law was such that in order to be lawfully able to detain a person so as to prevent their imminent commission of an offence, the police must harbour a purpose of continuing the detention, after the risk has passed, until such time as the person could be brought before a court with a view to being bound over to keep the peace in the future. This would lengthen the period of detention and place an unnecessary burden on police resources [36]. Rather, Lord Toulson reads the phrase for the purpose of bringing him before the competent legal authority as implicitly dependent on the cause for detention continuing long enough for the person to be brought before the court. Early release from detention for preventive purpose will not breach article 5 if the lawfulness of the detention can subsequently be challenged and decided by a court [38]. In respect of article 5(1)(b), the Court also prefers the view of the minority in Ostendorf. A general obligation not to commit a criminal offence or, in this case, a breach of the peace, is not an obligation prescribed by law for the purposes of article 5(1)(b) as it is not concrete or specific enough. Such a general obligation does not acquire the necessary degree of specificity by focusing narrowly on the particular facts or by the person concerned being given a reminder of it in specific circumstances. The police may be required to take action to prevent an imminent breach of the peace where there is insufficient time to give a warning [27, 40].

It is central to each of the appellants claims for asylum that they came from a particular region of Somalia where they were at risk of persecution. In each case, in dismissing those claims, the Secretary of State relied on linguistic analysis to the effect that their mode of speaking was linked to Kenya not Somalia. That evidence came in the form of linguistic analysis reports provided by a Swedish commercial organisation called Sprakab. Those decisions were upheld on appeal to the Upper Tribunal (UT) but reversed by the Inner House which made a number of criticisms of the form of the reports and the reliance placed on them by the Asylum and Immigration Tribunal (AIT). In another case raising similar issues, a special three judge panel of the Upper Tribunal gave guidance on the use of such reports in the future. They endorsed the use of the Sprakab reports, subject to certain safeguards. Their approach was in general supported by the Court of Appeal in RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277 (RB). The issues for consideration by the Supreme Court are: Whether the immigration judges were entitled to attribute any weight to the Sprakab reports; In what circumstances should witnesses providing evidence in such appeals be granted anonymity; Whether there are any particular rules governing expert evidence tendered in the name of an organisation rather than an individual; To what extent can such evidence be accepted in a form not prescribed by the Practice Directions; and To what extent, and with what effect, can the Upper Tribunal give guidance as to the weight to be given to such reports, or the conclusions to be drawn from them. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment, with which Lord Neuberger, Lord Clarke, Lord Hughes and Lord Hodge agree. The Practice Directions contain valuable guidance on the general principles applying to expert evidence. The absence of any specific provision in the Practice Directions for evidence in the form of the Sprakab reports was not in itself a bar to their admission. Where the tribunals were faced with a new form of evidence, of potential value in resolving issues of common occurrence, it was entirely appropriate for the UT to select a suitable case with a view to giving general guidance. The Practice Directions did not have to be rigidly applied. The UT were right in RB to address questions relating to Sprakab, its methodology and the presentation of its reports. Subject to appropriate safeguards, they were entitled to find no objection of principle to the admission of Sprakab reports [34 37]. The AIT has the power to make a direction for anonymity but in respect of an individual expert witness its exercise requires special justification. Sprakabs policy of anonymity would not absolve the tribunal of its duty to examine of itself the evidence said to justify a departure from the normal rule. However, there were valid reasons for taking a less strict view in the present context. This was not anonymous evidence in the ordinary sense. The evidence was advanced, and the expertise claimed, on behalf of an organisation, based on the collaborative work of individuals with different skills within it. There was no doubt about the identity of the organisation, its working methods or the qualifications and experience of those involved in preparing its report. The names of the individuals were available to the tribunal, and could have been made known to the parties if it became necessary to do so, for example to pursue a particular line of cross examination. Subject to appropriate safeguards, and to satisfy themselves that in the circumstances of the particular case no prejudice was caused, the Upper Tribunal were entitled to determine that there was no objection in principle to anonymity [42 43]. For the most part, the general guidance given by the UT was helpful and appropriate but on two aspects the guidance appears unduly prescriptive and potentially misleading. The first is as to the weight to be given to such evidence in future cases. It seems to underplay the importance in any case of the tribunal itself examining such a report critically in the light of all the evidence, and of the reasoning supporting its conclusion. The other concern is similar, relating to the guidance on anonymity. It is important to emphasise that it would remain the duty of the tribunal in any future case to determine what justice requires, in the light of the evidence and submissions made to them [44 50]. In the present cases, there are clear reasons for dismissing the appeals on their own facts. The comments in the reports (upon which the Secretary of State originally relied) on knowledge of country and culture were inadequately supported by any demonstrated expertise of the authors. In some respects the evidence went beyond the proper role of a witness. Expert witnesses should never act or appear to act as advocates. The judge in the UT was entitled to regard the guidance in RB as persuasive on the procedural matters covered by it, but it was no substitute for a critical analysis of the particular reports relied on and of the reasoning of the first tribunal [52 60].

The respondent is a Detective Sergeant with the Metropolitan Police Service (MPS) Extradition Unit. The appellant is the publisher of The Times newspaper and of material on The Times website. On 2 June 2006 the appellant published an article which named the respondent as a detective accused of taking money to disclose confidential extradition information to a security firm, ISC Global (UK). ISCs clients included high profile Russians who were the subject of extradition requests. The respondent was a friend of one of the partners of ISC, Mr Hunter. An ISC insider was said to have identified cash payments totalling 20,000, to a recipient codenamed as Noah in the accounts, which could be a reference to the respondent. The appellant was told of and became interested in this possibility from December 2005. The ISC insider later passed a dossier of information to the MPS and to the appellant. The article quoted a spokesman from the MPS who confirmed that the MPS was conducting an investigation into allegations that a serving officer made unauthorised disclosures of information to another individual in exchange for money. The article reported the denial of wrongdoing issued by the respondent. The MPS had not in fact taken any steps to investigate the allegations before being contacted by the appellant in April 2006. At that point warrants were issued and the respondents home was searched. The respondent was temporarily moved from the Extradition Unit, returning in January 2007. In September 2007 the MPS told the parties that the investigation had finished and that it had made no recommendations of criminal or disciplinary proceedings against the respondent. The respondent issued a claim for libel, complaining that the article meant there were strong grounds to suspect he had abused his position as a police officer. The appellant relied, amongst other defences, on the special defence for publications in the public interest known as Reynolds privilege. The applicability of the defence in the circumstances of this case was determined as a preliminary issue. On 16 October 2009 the judge in the High Court found that the publication of the article in the newspaper (and on the website up to the date the investigation was completed) was protected by Reynolds privilege. This finding was overturned by the Court of Appeal on 13 July 2010. The Supreme Court unanimously allows the appeal and holds that the article was protected by Reynolds privilege. The main judgments are given by Lord Phillips and Lord Mance. Reynolds privilege protects the publication of defamatory matter to the world at large where (i) it is in the public interest that the information should be published and (ii) the publisher has acted responsibly in publishing the information [2]. The present appeal raised three issues of principle in relation to the privilege: how to approach the question of the meaning of the article, whether it was in the public interest to refer to the details of allegations made against the respondent and what verification was required to discharge the requirements of responsible journalism [22 25]. The Supreme Court addressed the issues as follows: Meaning The seriousness of the allegation being made is an important factor in the assessment of where the balance is to be struck between the desirability that the public should receive information and the potential harm caused if the individual is defamed [48]. It is commonplace for Reynolds privilege to be determined as a preliminary issue but this makes it necessary to determine the meaning of the article, which will also be relevant to verification. The sensible way of achieving this is for the parties to agree to trial by judge alone, who can then resolve any dispute as to meaning at the same time [49]. In this case the parties agreed that the meanings of the article for which they respectively contended that there were strong grounds to investigate the respondent or that there were grounds justifying a police investigation were so close that it was not necessary to choose between them for the purposes of the preliminary issue. However, where a publication is capable of bearing a range of meanings, Lord Phillips and Lord Brown thought that a journalist must have regard to the full range when deciding whether to publish and when attempting to verify [51][111]. Public interest The respondent maintained that while the general subject matter of the article police corruption was of public interest, as a matter of principle the publication of the facts giving rise to the allegations being investigated was not [53]. This may be so, but each case will turn on its own facts and on this occasion the publication of such details was justified. The story was of high public importance and the allegations against the respondent were the whole story [68] [119]. They were published with the legitimate aim of ensuring the allegations were properly investigated by the police in circumstances where the journalist had good reason to doubt that they were being [69]. Naming the respondent was also justified as he would be identified in any event by his fellow officers and suspicion should not fall on other members of the Extradition Unit [75] [169]. Lord Mance held that journalistic judgment and editorial freedom were entitled to weight when considering how much detail should be published [170] but any journalist must consider carefully the public interest in doing so when allegations have not been investigated or their accuracy determined [177]. Lord Dyson considered that it was generally likely to be in the public interest to publish the details of allegations of police corruption, provided the test of responsible journalism was met [195]. Verification This was not a case of reportage, where the public interest lies in the fact that an allegation has been made. Here the public interest lay in the content of the allegations and the fact that they might be true. Privilege for this would only attach if the journalist honestly and reasonably believed the published facts to be true [78]. The hard and fast principles relating to the defence of justification do not apply when considering verification. The existence of grounds for suspicion can be based on information from reliable sources or may reasonably be inferred from the fact of a police investigation [80]. In this case the judge found that the supporting facts were true and verified as such [87] [167]. It was reasonable for the journalists to conclude from the police investigation and application for a search warrant that the accusation against the respondent might be well founded. There was a strong circumstantial case against him [98]. The Supreme Court declined to address the question of how, as a matter of principle, the Court of Appeal should approach a challenge to a decision of a trial judge on a defence of Reynolds privilege, in the absence of oral argument on this aspect [100 106]. The outstanding appeal, in relation to the continued publication of the article on the website after the completion of the investigation of the respondent, was adjourned for a further hearing [107].

This appeal considers the impact of fraudulent non disclosure on a financial settlement agreed between a husband and wife on divorce, especially one embodied in a court order. The parties were married in 1993 and separated in 2010. They have three children, one of whom has severe autism and will require care from Mrs Sharland throughout his life. Mr Sharland is an entrepreneur who has a substantial shareholding in a software business, AppSense Holdings Ltd, which he developed. In the financial proceedings between the parties the value and manner of distribution of this shareholding was the principal matter in dispute. Both parties instructed valuers, who produced valuations on the basis that there were no plans for an Initial Public Offering (IPO) of the company. In the course of the trial in the High Court in July 2012, after Mr Sharland gave evidence confirming that there was no IPO on the cards today, the parties reached an settlement by which Mrs Sharland agreed to receive 30% of the net proceeds of sale of the AppSense shares whenever that took place, together with other assets. The judge approved the agreement and a draft consent order was drawn up. Before it was sealed, however, Mrs Sharland became aware that AppSense was being actively prepared for an IPO which was expected to value the company at a figure far in excess of the valuations prepared for the hearing. Mrs Sharland immediately invited the judge not to seal the consent order and applied for the hearing to be resumed. At the hearing of her application in April 2013 the judge found that Mr Sharlands earlier evidence had been dishonest and, had he disclosed the IPO plans, the court would have adjourned the financial proceedings to establish whether it was going ahead. However, by the time of the hearing, the IPO had not taken place and an IPO was not now in prospect. The judge declined to set aside the consent order on the ground that he would not have made a substantially different order in the financial proceedings, applying the decision of the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424. The Court of Appeal upheld the judges order (Briggs LJ dissenting) and Mrs Sharland appealed to the Supreme Court. The Supreme Court unanimously allows Mrs Sharlands appeal. The consent order will not be sealed and Mrs Sharlands application for financial relief will return to the Family Division of the High Court for further directions. Lady Hale gives the only judgment. It is in the interests of all members of a family that matrimonial claims should be settled by agreement rather than adversarial battles in court [17]. Such an agreement cannot oust the power of the court to make orders for financial arrangements [18] and does not give rise to a contract enforceable in law [19], but the court will make an order in the terms agreed unless it has reason to think there are circumstances into which it ought to inquire [20]. Allied to this responsibility of the court is the parties duty to make full and frank disclosure of all relevant information to one another and to the court [21]. Family proceedings differ from ordinary civil proceedings in two respects: a consent order derives its authority from the court and not from the consent of the parties and the duty of full and frank disclosure always arises [27]. The consent of the parties must be valid. If there is a reason which vitiates a partys consent there may also be good reason for the court to set aside a consent order. Whether the court is bound to do so is the question arising on the appeal [29]. It is not necessary to decide in this case whether the greater flexibility which the court now has in cases of innocent or negligent misrepresentation in contract law, restricting a victims right to rescind the agreement, should also apply to such misrepresentations or non disclosure in consent orders in civil or family cases. The present case is one of fraud. It would be extraordinary if the victim of a fraudulent misrepresentation in a matrimonial case was in a worse position than the victim of a fraudulent misrepresentation in an ordinary contract case, including a contract to settle a civil claim. Briggs LJ in the Court of Appeal was correct to apply the general principle that fraud unravels all and should lead to the setting aside of a consent order procured by fraud [32]. The only exception is where the court is satisfied that, at the time when it made the consent order, the fraud would not have influenced a reasonable person to agree to it, nor, had it know then what it knows now, would the court have made a significantly different order, whether or not the parties had agreed to it. The burden of establishing this must lie with the perpetrator of the fraud [33]. On the facts of this case it is clear that the judge would not have made the order he did, when he did, in the absence of Mr Sharlands fraud, and the consent order should have been set aside. The judge had misinterpreted Livesey, which had drawn a distinction between triviality and materiality at the date of the order and not at some later date [34]. He had also been wrong to deprive Mrs Sharland of a full and fair hearing of her claims by re making his decision at the hearing of the application on the basis of the evidence then before him [35]. The consent order should not be sealed and the matter should return to the Family Division for further directions [36]. The final part of the judgment discusses the procedure to be followed by parties seeking to challenge the final order of a court in family proceedings. The court retains jurisdiction over a marriage even after it has been dissolved and s 31F(6) Matrimonial and Family Proceedings Act 1984 gives the family court power to vary, suspend, rescind or revive any order by it. It is open to the parties either to make a fresh application or to appeal against the consent order. Lady Hale endorses the observations of Lord Wilson in the judgment in Gohil v Gohil [2015] UKSC 61 on the question of how such applications should be made, while emphasising that the renewed financial remedy proceedings need not start from scratch and the court may be able to isolate the issues to which the misrepresentation or non disclosure relates [37 43].

Section 133 of the Criminal Justice Act 1988 (s 133) provides that the Secretary of State for Justice shall pay compensation when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Article 14(6)), which the United Kingdom ratified in May 1976. Article 14(6) also refers to a miscarriage of justice. The principal issue in these appeals was the meaning of this phrase in this context; in particular whether compensation should only be given if someone was subsequently shown conclusively to have been innocent of the offence. The three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. In each case the claim was refused on the ground that the appellant had not shown that a miscarriage of justice had occurred. In Mr Adams case, it was also refused on the ground that he had not shown that his conviction had been reversed by reason of a new or newly discovered fact. Mr Adams was convicted on 18 May 1993 of the murder of Jack Royal. His conviction was referred to the Court of Appeal in 2007 on the ground that incompetent defence representation had deprived him of a fair trial. His representatives had failed to consider unused material provided by the police which would have assisted in undermining the evidence given by the sole prosecution witness. The Court of Appeal found that if this had been done the jury might not have been satisfied of Mr Adams guilt, although he would not inevitably have been acquitted. Mr McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty, and Mr MacDermott that of DC McNulty, on 12 January 1979. The sole evidence was their admissions during interviews with the police. They alleged that these had been made after ill treatment and called other witnesses who claimed to have suffered similar treatment from the same group of police officers. The judge rejected their evidence. He had been told that a prosecution brought against one of these witnesses had not been proceeded with. But he was not told that this was because senior officers in the Department of the Director of Public Prosecutions considered that he had been assaulted by police officers to obtain his confession and that a conviction in another case, based on a confession obtained in similar circumstances and involving one of the same officers, had been quashed. The Court of Appeal in Northern Ireland quashed the convictions of Mr McCartney and Mr MacDermott on 15 February 2007 on the ground that this new evidence left it with a distinct feeling of unease about the safety of their convictions. The Supreme Court unanimously dismisses the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allows the appeals of Mr MacDermott and Mr McCartney. The majority hold that a miscarriage of justice has occurred for the purposes of s 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it. Miscarriage of justice Miscarriage of justice was a phrase capable of a number of different meanings. It was useful to consider four categories of cases in which the Court of Appeal would quash a conviction on the basis of fresh evidence: Where it showed a defendant was innocent of the crime (category 1) Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (category 2) Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (category 3) Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (category 4) [9] The primary object of s133, and of Article 14(6), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime [37]. Category 4 fell outside this purpose as it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilt of the convicted person [38]. Category 3 was also outside s 133 because the miscarriage of justice had to be shown beyond reasonable doubt. Category 3 would include a significant number who had in fact committed the offences, as an inevitable consequence of a system which required guilt to be proved beyond reasonable doubt [42]. Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt. A wider scope was plainly intended at the time of the drafting of Article 14(6). Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for miscarriage of justice in s 133 (in more robust terms than category 2) was as follows: A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it [55]. A miscarriage of justice in a case of that kind would be as great as it would have been if he had in fact been innocent, because in neither case would he have been prosecuted at all [102]. Four justices dissented on this issue. Lord Judge considered that the words beyond reasonable doubt in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]. Lord Brown considered that there was no logical or principled dividing line between categories 2 and 3 [274] and the arguments in favour of an interpretation limited to category 1 were compelling [277]. Lord Rodger agreed with Lord Brown, and Lord Walker agreed with Lord Brown and Lord Judge. Application of s 133 to cases involving a retrial An amendment to s 133 (subsection 5A) which referred to a retrial changed the timetable for a claim for compensation. It did not mean that compensation was payable in every case in which a retrial had been ordered and the defendant then acquitted, as was argued by counsel for the intervener Barry George. The same test was to be applied. The amendment allowed for the possibility that something might emerge in the retrial which would require compensation [104]. New or newly discovered fact Lord Phillips (with whom Lady Hale, Lord Kerr and Lord Clarke agreed) held that the phrase new or newly discovered fact should be interpreted generously in accordance with the effect given to Article 14(6) by legislation in Ireland as including facts the significance of which was not appreciated by the convicted person or his advisers during the trial [60]. Lord Hope disagreed, considering that material disclosed to the defence by the time of the trial could not be said to be new and the focus on the state of mind of the convicted person went too far [107]. Lord Judge (with whom Lords Brown, Rodger and Walker agreed) preferred an approach which coincided with the test for admission of fresh evidence before the Court of Appeal, which required a reasonable explanation for the failure to adduce the evidence at the trial. This had been satisfied by Mr Adams in his case [281]. Disposal of the appeals Mr Adams appeal was unanimously dismissed on the ground that his was a category 3 case and did not fall within s 133. The majority allowed the appeals of Mr McCartney and Mr MacDermott as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based upon it. The minority would have remitted their cases to the Secretary of State for further consideration in the light of the judgment.

This appeal relates to immigration law and the British Nationality Act 1981 (the Act). Pursuant to section 40 (4) of the Act, the Secretary of State for the Home Department (the Secretary of State) cannot deprive a person of his British citizenship on the ground that it is conducive to public good if she is satisfied that it would make that person stateless. Mr Al Jedda came to the UK from Iraq in 1992 and was granted British nationality on 15 June 2000. As a result, because of Iraqi law, he automatically lost his Iraqi nationality. In September 2004 Mr Al Jedda travelled from the UK to Iraq. He was arrested in Iraq the following month by US forces who transferred him into the custody of British forces. Mr Al Jedda was held, without charge, for more than three years. Soon after his release he travelled to Turkey where he currently lives. In judicial review proceedings Mr Al Jedda contended that his internment violated his rights under article 5(1) of the European Convention on Human Rights (right to liberty and security). This was rejected by the UK courts, including the House of Lords. However, the Grand Chamber of the European Court of Human Rights held that his internment had violated his rights under article 5(1). In separate proceedings, initiated in 2006, Mr Al Jedda brought a claim for habeas corpus in which he asserted that his internment had become unconstitutional under Iraqi law. After his release, he re pleaded the claim as one for damages. The claim was dismissed and the Court of Appeal upheld the dismissal. By order dated 14 December 2007, shortly prior to his release from internment, the Secretary of State deprived Mr Al Jedda of British citizenship pursuant to her powers under the Act. This order was preceded by a letter to Mr Al Jedda, dated 12 December 2007, by which the Secretary of State informed him of why she was satisfied that depriving him of British Citizenship would be conducive to the public good. On 11 January 2008 Mr Al Jedda appealed to the Special Immigration Appeals Commission (the Commission), one of his grounds of appeal being that the Secretary of States order would render him stateless and was therefore void. The Commission concluded that Mr Al Jedda had, through an Iraqi law in force between 2004 and 2006, regained Iraqi nationality and would therefore not be rendered stateless by the Secretary of States order. Mr Al Jedda appealed and on 12 March 2010 the Court of Appeal, allowing the appeal, directed the Commission to rehear the issue. On 26 November 2012, the Commission again concluded that Mr Al Jedda had regained Iraqi nationality prior to the date of the Secretary of States order and was therefore not stateless. In the decision under current appeal the Court of Appeal found this second decision to be erroneous in law. The effect of this was that the Court of Appeal had to consider the Secretary of States alternative contention, namely that if, on 14 December 2007, Mr Al Jedda had not been an Iraqi national, it had been open to him to regain it by application and that it had been his failure to make the application, rather than her order, which had made him stateless. The Court of Appeal, rejecting the Secretary of States alternative contention, held that the effect of her order would be to make Mr Al Jedda stateless. The Secretary of State appeals against this decision. The Supreme Court unanimously dismisses the appeal by the Secretary of State. The Court rejects the Secretary of States alternative argument. From a plain reading of the statute and surrounding guidance, it is clear that the question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship. On the evidence before the Court of Appeal, the validity of the premise upon which the Secretary of State bases her argument, namely that Mr Al Jedda could have applied to the Iraqi authorities for restoration of his nationality, that he had a right to its restoration and that restoration would have been effective immediately, is not clearly established [25]. Even adopting the suggested premise, the Section 40(4) restriction on the Secretary of States power to deprive a person of his British citizenship does not permit her to conduct an analysis of the relative strength of contributing factors. The question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship [32]. The ability of the Secretary of State to assert that the person in question could quickly and easily re acquire another nationality would create confusion in the application of what should be a straightforward exercise [32]. In section 12 of the Act, a person can renounce British citizenship as long as they have another nationality or, notably, will acquire another nationality. Parliament could have made an analogous provision in section 40(4), preventing a person from being made stateless, for example, in circumstances in which he has no right immediately to acquire the nationality of another state but it did not do so [33]. The Home Office has incorporated, verbatim, parts of 2012 United Nations guidelines on statelessness into its own guidance, dated 1 May 2013, entitled Applications for leave to remain as a stateless person. This stipulates that . An individuals nationality is to be assessed as at the time of determination of eligibility It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making [a] determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a nationalSimilarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition. The Secretary of States own guidance helpfully addresses the very issue in question, but unhelpfully to her appeal [34]. An outstanding issue, which is not for this court to resolve [29], relates to the Secretary of States assertion, following the Supreme Court hearing, that she now understands that Mr Al Jedda has a genuine Iraqi passport and a valid grant of Iraqi nationality [27]. Mr Al Jedda responds that the passport to which the Secretary of State refers is a fake one, used by him at the time to travel from Iraq to Turkey in 2008 [28 (a)]. It may be that the Secretary of State will make a further deprivation order on the basis that, given the Iraqi passport, Mr Al Jedda would not be rendered stateless by it. Mr Al Jedda would no doubt dispute this conclusion and may also contend that the Secretary of State is prevented from alleging the validity of the passport at this late stage. The Court does not comment on these possibilities [29].

This appeal concerns the breadth of the ethical investments that the authorities which administer the local government pension scheme (the scheme) are permitted to make. An ethical investment can be defined as one made not, or not entirely, for commercial reasons but in the belief that social, environmental, political or moral considerations make it, or also make it, appropriate. The scheme is an occupational pension scheme under which authoritiesin most cases local authoritiesin England and Wales administer funds separate from their other resources. An authority makes contributions into its fund for its employees, who also make contributions themselves. The scheme provides defined pension benefits for past and present employees. The Public Service Pensions Act 2013 (the 2013 Act) empowers the respondent Secretary of State to make regulations providing for the issue of guidance to authorities on the schemes administration and management (section 3 and para 12 of Schedule 3). The Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 (the 2016 Regulations), made pursuant to these provisions, require an authority to formulate an investment strategy. This must be in accordance with the guidance and must include the authoritys policy on how social, environmental and corporate governance considerations are taken into account in its investment decisions (reg. 7). The appellants brought a claim for judicial review alleging that two passages in the guidance issued in 2016 by the Secretary of State pursuant to that regulation were unlawful. The first passage states that the Government has made clear that using pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries are inappropriate, other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government. The second passage states that authorities [s]hould not pursue policies that are contrary to UK foreign policy or UK defence policy. In the High Court the claim was upheld, and the two passages ruled unlawful, on the basis that the issue of them by the Secretary of State exceeded his powers. The Court of Appeal upheld the Secretary of States appeal. The appellants now appeal to the Supreme Court. By a majority, the Supreme Court allows the appeal and restores the High Courts order. Lord Wilson gives the main judgment, with which Lady Hale agrees. Lord Carnwath gives a concurring judgment. Lady Arden and Lord Sales give a joint dissenting judgment. Lord Wilson states that, to determine whether the issue of the guidance under challenge was lawful, the court must analyse the scope of the power conferred by Parliament on the Secretary of State. Pursuant to the decision of the House of Lords in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (Padfield), it must do so by construing the words by which the power was conferred on him in their context. From the words in their context Parliaments purpose in conferring the power can be identified, and the purpose can be used to shed light on the powers scope [1, 20 22]. Lord Wilson observes that Schedule 3 to the 2013 Act identifies the matters which, in particular, Parliament had in mind when conferring the power, one of which was the administration and management of the scheme [23]. The 2016 Regulations, which can be used to interpret the Act, require the investment strategy to include the authoritys policy on how non financial considerations are taken into account (reg. 7) [24]. The guidance adopts two uncontroversial tests for the taking into account of such considerations: does the proposed step involve significant risk of financial detriment to the scheme and is there good reason to think that members would support taking it? These three legal instruments use words (including administration, management, how considerations are taken into account, and strategy) which, considered in their context, all point in the same direction: that the Acts policy is to identify procedures, and the strategy, which administrators should adopt in the discharge of their functions [25 26]. But in the passages under challenge, the Secretary of State has insinuated into the guidance something entirely different: an attempt to enforce the governments foreign and defence policies by providing that, even when the two tests above have been met, an administrator is prohibited from taking an investment decision if it runs counter to such policies [27]. Lord Wilson suggests that the Secretary of State was probably emboldened to exceed his powers by the misconception that the scheme administrators were part of the machinery of the state and discharge conventional local government functions. This fails to recognise that they have duties which, at a practical level, are similar to those of trustees, and they consider themselves quasi trustees who should act in their members best interests. The Secretary of States claim that contributions to the scheme are ultimately funded by the taxpayer is equally misleading: for the fund represents the contributing employees money, not public money [28 30]. In any event, the Secretary of States inclusion of the two passages in the guidance exceeded his powers. Power to direct how administrators should approach the making of investment decisions by reference to non financial considerations does not include power to direct what investments they should not make [31]. Lord Carnwath notes that, while the scope of the guidance is unclear, it appears to have been intended to preclude authorities who are making investment decisions both from engaging in political campaigns and from taking into account considerations in policy areas reserved for the UK government [36 40]. But the 2013 Act and the 2016 Regulations required any guidance to respect the primary responsibility of the authorities as quasi trustees of the fund [41 42]. The Secretary of State was not entitled, therefore, to make authorities give effect to his own policies in preference to those which they themselves thought it right to adopt in fulfilment of their fiduciary duties [43 44]. Lady Arden and Lord Sales consider that the purposes of the 2013 Act, which implemented the Hutton report, extend to reflecting the public interest and instituting good governance in the reformed public sector pension schemes [47, 69 80]. Guidance as to their management could include establishing the role of the Secretary of State in relation to investment [49]. Following consultation, the guidance related only to decisions based on non financial considerations which are taken to pursue boycotts and disinvestment campaigns against foreign nations [50 55, 82 5]. The Secretary of State had serious concerns that these might undermine foreign policy or trade and might lead to racist behaviour. These were matters for government [53 56]. The schemes were liable to be identified with the British state [58, 87 8]. The power to give guidance is not limited to procedural matters [62, 86, 89]. The leading authorities on the Padfield principle support the approach taken [63 68].

This appeal concerns the question of what is the effective date of termination of a persons employment. The determination of this date is important for a number of purposes. These include the marking of the start of the three month period within which proceedings for unfair dismissal may be taken. In the present case the relevant definition of the term is contained in section 97(1) of the Employment Rights Act 1996, which provides that, in relation to an employee whose contract of employment is terminated without notice, the effective date of termination means the date on which the termination takes effect. The Respondent, Lauren Barratt, was suspended from her employment with the Appellant, a small charitable organisation, because of alleged inappropriate behaviour at a private party. A disciplinary hearing was held on 28 November 2006 which the Respondent attended. At the end of the hearing she was told that she could expect to receive a letter on Thursday, 30 November informing her of the outcome. The Respondent left her home at 8 am on 30 November, however, before any letter arrived. She went to London to see and help her sister, who had given birth a week earlier. She did not return until late on Sunday evening, 3 December. A recorded delivery letter had arrived for the Respondent on 30 November, informing her that she had been summarily dismissed for gross misconduct. She did not read this letter until the morning of Monday, 4 December. The Respondent filed a claim for unfair dismissal and sex discrimination at the Employment Tribunal on 2 March 2007. Depending on the view that one takes of the date on which the Respondents employment was brought to an effective end, her claim was lodged either just within or just outside the period of three months from that date. If outside the period, the Respondent would be unable to maintain her claim to have been unfairly dismissed. The Employment Tribunal held that the unfair dismissal claim was in time. The decision was upheld on appeal by the Employment Appeal Tribunal and also, on a further appeal, by the Court of Appeal. Gisda Cyf appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that: (1) the effective date of termination of employment is when the employee is informed of the dismissal or when the employee has had a reasonable opportunity of discovering that she has been dismissed; (2) it is correct to include consideration of the behaviour of the employee in an assessment of whether the employee has had a reasonable opportunity to find out about the dismissal. The judgment of the Court is delivered by Lord Kerr. The broader issue in the case was whether the effective date of termination of employment is: (1) when an employee is informed of her dismissal or at any rate when she has had a reasonable opportunity of finding out; or (2) some other time, for example when a letter of dismissal is posted. In deciding that it was the former, the Court looked to the purpose of the 1996 Act. Although conventional principles of contract law may point towards the second of the two options, the appellants argument that conventional principles of contract law should determine the interpretation of section 97 must be rejected. The effective date of termination as defined in section 97 is a statutory construct which is to be interpreted in its statutory context. The interpretation must be guided principally by the underlying purpose of the statute [para 35; 41]. Section 97 is intended to hold the balance between employer and employee but it does not require that both sides be placed on an equal footing. The section is part of a charter protecting employees rights which recognises that employees as a class are in a more vulnerable position than employers. An interpretation that promotes those rights, as opposed to one which is consonant with traditional contract law principles, is to be preferred. An essential part of employees rights is the requirement that employees be informed of any possible breaches of their rights [para 35 37]. In particular, the legislation is designed to allow an employee three months not three months less a day or two to make a complaint of unfair dismissal [para 42]. Indeed, it would not be reasonable for time to begin to run against an employee in relation to his unfair dismissal complaint until the employee knows or, at least, has a reasonable chance to find out that he has been dismissed. It is entirely proper that the time (already short) within which one has the chance to decide whether to bring a claim should not be further abbreviated by complications surrounding the circumstances that someone receives information that she has in fact been dismissed [para 34]. The Court felt that the matter was put beyond doubt by consideration of the interim relief provision in section 128 of the 1996 Act. An application to the Employment Tribunal for interim relief by an employee who complains that he has been unfairly dismissed must be made within seven days following the effective date of termination of employment. If the effective date is taken to mean the date of the employers decision to dismiss or the date of his letter, the seven day period might completely expire before the employee becomes aware of the need to have recourse to it. Parliament could not have intended this [para 44 45]. The narrower issue in the case was whether it was correct to include consideration of the behaviour of an employee in an assessment of whether she has had a reasonable opportunity to find out about her dismissal. The Court, in holding that it was correct to include such consideration, reasoned that there is a need to be mindful of the human dimension in considering what is reasonable to expect of someone facing the prospect of dismissal from employment. To concentrate exclusively on what is practically feasible may compromise what can realistically be expected [para 30].

On 3 May 2006, the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth with considerable loss of life. Her owners were Starlight Shipping Company (Starlight). Starlight made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of Starlight. In response, Starlight made a number of serious allegations against their insurers including allegations of misconduct involving tampering with and bribing of witnesses. On 15 August 2006, Starlight issued proceedings in the Commercial Court against various insurers (the 2006 proceedings). One group of insurers was described as the Company Market Insurers (CMI) and the other group was described as the Lloyds Market Insurers (LMI). Before the hearing, the 2006 proceedings were settled between Starlight and the insurers and the proceedings were stayed by way of a Tomlin Order. In April 2011, nine sets of Greek proceedings, in materially identical form, were issued by Starlight although they were expressed as torts actionable in Greece. The insurers sought to enforce the earlier settlement agreements. Starlight applied for a stay of these proceedings, firstly pursuant to Article 28 then Article 27 of Council Regulation (EC) No 44/2001 (the Regulation) The judge refused to grant a stay under Article 28 and gave summary judgment to the insurers. The Court of Appeal held that it was bound to stay the 2006 proceedings under Article 27, which provides for a mandatory stay, and it was not therefore necessary to reach a final determination of the position under Article 28. Before the Supreme Court, the insurers challenge the correctness of the Court of Appeals conclusion under Article 27 and submit that the judge was correct to refuse a stay under Article 28. Starlight cross appeal on the Article 28 point. Subject to the possibility of a reference to the CJEU on some limited questions, the Supreme Court unanimously allows the CMIs and LMIs appeal. Lord Clarke gives the lead judgment, with which Lord Sumption and Lord Hughes agree. Lord Neuberger agrees adding a short judgment of his own. Lord Mance agrees with the result. Article 27 Article 27 must be construed in its context. The purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State [23, 27]. In the case of each cause of action relied upon, it is necessary to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded [29]. The essential question is whether the claims in England and Greece are mirror images of each other and thus legally irreconcilable [30]. There are three heads of claim in England: indemnity, exclusive jurisdiction and release [32]. None of the causes of action relied upon in the Greek proceedings has identity of cause or identity of object with the CMIs claim for an indemnity. The subject matter of the claims is different. The Greek proceedings are claims in tort (or its Greek equivalent) and the claims in England are claims in contract. As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability and to claim damages for breach of the exclusive jurisdiction clauses [34]. The same is true of the CMIs claims in respect of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies [36]. The causes of action based upon an alleged breach of the settlement agreement are not the same causes of action as are advanced in Greece [37]. The same is also true of the claims based on the release provisions in the CMI settlement agreement [40]. The Greek claims are claims in tort and the English proceedings are contractual claims. The factual bases for the two claims are entirely different. Moreover, the object of the two claims is different [41]. The Supreme Court is unanimous that that is the position with regard to the claims for damages for breach of the release provisions in the settlement agreements. However, in so far as the insurers claim declarations, while the majority reaches the same conclusion, Lord Mance reaches a different conclusion on the basis that the claims for declarations in the two jurisdictions are mirror images of each other. The court unanimously decides that, unless the insurers abandon those claims for declarations, the relevant question should be referred to the CJEU for an opinion [59]. In the event, the CMI have now abandoned their claims for declarations based on the release provisions and it is not necessary to refer the question to the CJEU. It follows that the CMIs appeals under Article 27 are allowed. The position of the LMI is essentially the same as in the case of the CMI [55]. If the LMI do the same within the time permitted, their appeals will also be allowed under Article 27. A similar position has been reached in respect of LMIs submission that the appeals under Article 27 should have been rejected by the Court of Appeal as being too late [123]. Article 28 The discretion to stay claims under Article 28 is limited to any court other than the court first seised [74]. On the assumption that the English court is second seised for the purposes of Article 28, the question arises whether the actions should be stayed as a matter of discretion [91]. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay [92]. However, the natural court to consider the issues raised by CMI and LMI is the High Court in England because they raise contractual questions governed by English law and because it is at least arguable that the parties have agreed that they should be decided by the High Court, where the proceedings are more advanced than in Greece [96]. The decision of the judge in refusing a stay under Article 28 is upheld and the cross appeal is dismissed [97, 125].

Sigma Finance Corporation is a structured investment vehicle (SIV) established to invest in certain types of asset backed securities and other financial instruments. Sigma aimed to profit from the difference between the cost of funding its activities and the returns made on its investment portfolio. However, the impact on the financial markets stemming from the sub prime mortgage market in the United States has meant that Sigmas available assets now fall very far short of the amount needed to pay even the secured creditors of the SIV. All of Sigmas assets are secured under a security trust deed (STD) in favour of those of its creditors investing in and through Sigma. The dispute in this case is between various classes of creditors as to the correct application of the STD where Sigma has insufficient funds to satisfy all its creditors and had failed to meet a margin call. The STD provided that in that event there should be a 60 day realisation period during which the trustees should use Sigmas assets to create, so far as possible, two pools of funds relating to its short and long term liabilities. But clause 7.6 of the STD also provided that: During the Realisation Period the Security Trustee shall so far as possible discharge on the due dates therefor any Short Term Liabilities falling due for payment during such period, using cash or other realisable or maturing Assets of the Issuer. The Court of Appeal, by a majority, construed clause 7.6 as meaning that the remaining assets fall to be distributed preferentially to the creditors whose debts fall due during the realisation period, with distribution to be made according to the dates when payment became due. The Supreme Court by a majority of four to one allowed the appeal by other creditors whose debts fell due after the realisation period. The principal judgment was delivered by Lord Mance, with whom Lords Hope, Scott and Collins agreed. Lord Walker dissented for the reasons outlined below). The principles of contractual construction to be applied were well established and required consideration of the basic scheme of the STD. Clause 7.6 appeared in the STD in the context of an assumption that Sigma would retain sufficient assets to cover its secured creditors. It was not intended to deal with a situation requiring the application of priorities between creditors. was improbable that clause 7.6 could be read as extracting from the short term pool debts which fell due during the 60 day realisation period so as to give priority over other creditors. (Paras [9] [10], [12], [13] [17]) It was also improbable that the parties would have contemplated priorities being conferred by the fortuitous timing of debts falling due during the realisation period. Clause 7.6 was an ancillary provision which did not override the trustees absolute discretion as to the manner in which assets were to be realised. No provision would have been made for the fees of the trustee if the Court of Appeal were correct. The reasonable persons understanding of clause 7.6 was aided by a clear basic scheme that debts arising during the realisation period were to be part of the short term pool of creditors with the assets to be distributed equitably amongst all the creditors at the discretion of the trustee. (Paras [21] [22], [25], [32] [33]) Lord Collins added that textual analysis of the type used to interpret tax legislation was not appropriate to a commercial contract. Detailed semantic analysis must give way to common sense. (Paras [35] [38]) Lord Walker dissented. He found that on closer examination the case involved no issue of general public importance. The legal principles were not disputed and the Court should avoid making new contracts for experienced commercial parties. (Paras [42] [46])

The issue in the two appeals relates to the circumstances in which statutory incompatibility will defeat an application by a member of the public to register land as a town or village green (a green) under the Commons Act 2006 (the Act) where the land is held by a public authority for statutory purposes. At issue in the first appeal is land, divided into five areas, adjacent to Moorside Primary School in Lancaster and owned by Lancashire County Council (LCC). A local resident applied to register the land as a green based on 20 years qualifying use. LCC objected on the basis that the land was acquired and remains appropriated for education purposes under LCCs statutory powers as education authority. An inspector appointed by the Secretary of State determined that four of the five areas should be registered. She was not satisfied that the land was in fact acquired and held for education purposes and, even if it had been, there was no good statutory incompatibility defence available to LCC. The inspectors determination was upheld by Ouseley J in the High Court on LCCs application for judicial review. The second appeal concerns a site at Leach Grove Wood in Leatherhead owned by NHS Property Services Ltd (the NHS). An application was made to register the site as a green, relying on use over a period of 20 years. An inspector recommended refusal of registration, but the registration authority, Surrey County Council (SCC), did not accept this and registered the land. On the NHSs application for judicial review in the High Court, Gilbart J distinguished the judgment of Ouseley J and quashed the registration on the basis that SCC had failed properly to consider statutory incompatibility. The appeals were heard together by the Court of Appeal, which upheld the decision to register in both cases. LCC and the NHS appealed to the Supreme Court. By a majority, the Supreme Court allows the appeals in both cases. Lord Carnwath and Lord Sales give the majority judgment, with which Lady Black agrees. Lady Arden gives a partly dissenting judgment and Lord Wilson gives a dissenting judgment. The inspectors finding in the Lancaster case that the land was not acquired and held pursuant to statutory education purposes was inconsistent with the evidence and irrational [33] [34]. Therefore the central issue in both the cases under appeal is the interpretation and application of the statutory incompatibility ground of decision identified in the majority judgment in the Supreme Court in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 (Newhaven) [43]. The majoritys opinion is that Newhaven authoritatively interpreted the Act to mean that where land is acquired and held for defined statutory purposes by a public authority, the Act does not enable the public to acquire rights over that land by registering it as a green where such registration would be incompatible with those statutory purposes [48]. Here there is an incompatibility between the statutory purposes for which the land is held and use of that land as a green and therefore the Act is not applicable [55]. The test set out in Newhaven is not whether the land has been allocated by statute for particular purposes, but rather whether it has been acquired by the public authority pursuant to its statutory powers and is held for the purposes of those powers, where those purposes are incompatible with registration of the land as a green [56]. The reference to acquisition by both voluntary sale and compulsory purchase is significant, since acquisition by voluntary sale will typically involve the exercise of general statutory powers rather than specific statutory provisions framed by reference to the land itself [57]. This construction of the Act is unsurprising; there is no indication that the general provisions in the Act regarding registration as a green were intended to have the effect of preventing use of land held by a public authority for specific public purposes defined in statute [61]. This general point can be made with particular force in relation to land held pursuant to the exercise of statutory compulsory purchase powers, since such powers are created for use in circumstances where there is an especially strong public interest that land should be used for particular purposes, such as is capable of justifying compelling a land owner to sell their land against their wishes [63]. Applying the Act as interpreted in Newhaven, LCC and the NHS can show that there is statutory incompatibility in each case. In the Lancaster case, the rights claimed pursuant to the registration of the land as a green are incompatible with the use of the relevant areas for education purposes, including for example use of them as playing fields or for constructing new school buildings. LCC does not need to show they are currently being used for such purposes, only that they are held for such statutory purposes [65]. Similar points apply in the Surrey case: the issue of incompatibility has to be decided by reference to the statutory purposes for which the land is held, not by reference to how the land happens to be used at a particular point in time [66]. Lady Arden disagrees with the reasoning of the majority. She would have allowed the appeals save that she would have dismissed the appeal in relation to two of the areas of the Lancashire site and remitted the matter to the registration authority in the Surrey appeal [122]. In her view, the fact that a public authority holds land for statutory purposes that are incompatible with the use of the land as a green is not of itself sufficient to make the land incapable of being registered. It must be shown that the land is in fact being, or that it is reasonably foreseeable that it will be, used pursuant to those powers in a manner inconsistent with the publics rights on registration as a green [77]. Lord Wilson dissents from the majority and would have dismissed both appeals [123]. The Acts reach is substantially reduced if land held by public authorities for specified statutory purposes is to be immune from registration as a green that could theoretically be incompatible with those purposes [126]. Newhaven was concerned with statutes that conferred specific duties in relation to particular land. Those specific duties were incompatible with the general provision in the Act which therefore had to give way [131]. In contrast, the present cases involve statutory provisions that confer general powers to acquire and hold unspecified land for education and health purposes and these cannot be said to be incompatible with the provision in the Act [132].

This appeal concerns the nature and content of the doctrine of Crown act of state. The question arises from proceedings brought against the Ministry of Defence and the Foreign and Commonwealth Office (the Government) by a large number of people (the respondents) who claim to have been wrongfully detained or mistreated by UK or US forces in the course of the conflicts in Iraq and Afghanistan. Insofar as the proceedings include claims based on the Iraqi or Afghan law of tort, the Government has (along with other defences) raised the doctrine of Crown act of state. The question of whether the doctrine is applicable in these cases was ordered to be determined as a preliminary issue, before the individual cases are heard by the lower courts. The Government argues that certain acts of high policy committed by a sovereign state are not susceptible to adjudication in the courts (they are non justiciable), but also that Crown act of state is a defence to an action in tort where a foreigner seeks to sue the Government in the courts of this country in respect of certain acts committed abroad, pursuant to UK policy in the conduct of its foreign affairs. The respondents argue that the doctrine of Crown act of state is only a narrow rule of non justiciability for acts of high policy in the conduct of foreign relations, which does not extend to decisions made to detain or transfer particular individuals. In the High Court, Leggatt J held that the claims were justiciable, but declared that the Crown act of state doctrine provided a defence to the tort claims. The Court of Appeal allowed the respondents appeals. It held that the doctrine provided a tort defence as well as a non justiciability rule, but that the defence would only apply when the Government could establish that there were compelling grounds of public policy to refuse to give effect to the local tort law. No such grounds arose in the case of Mr Mohammed, which is the only claim so far in which the relevant facts and evidence have been pleaded. The Supreme Court unanimously allows the Governments appeals, holding that, insofar as the respondents tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort. Lady Hale (with whom Lord Wilson agrees) gives the main judgment. Lord Mance, Lord Sumption, Lord Neuberger and Lord Clarke each give concurring judgments. Lord Hughes agrees with Lady Hale, Lord Mance and Lord Neuberger. The court will seek further submissions from the parties as to the appropriate form of declaration in each of these cases. A Crown act of state is a prerogative act of policy in the field of international affairs performed by the Crown in the course of its relationship with another state or its subjects [2]. The principle that there is no general defence of state necessity to a claim of wrongdoing by state officials has been established since the eighteenth century [4]. The early cases, however, indicated that there was an exception in the case of acts committed abroad against a foreigner which were authorised or ratified by the Crown [6]; it was also suggested that this doctrine encompassed two rules: one of non justiciability for certain prerogative acts of the Crown in sphere of foreign affairs and a second providing the Government or its servants with a defence to claims arising from acts of state committed abroad [19]. There is no reason to doubt that the first rule exists but the question for the Supreme Court is whether, as the Government submits, the doctrine also provides a defence to a claim which is otherwise suitable for adjudication for a court [22]. If the doctrine is to be confined to a non justiciability rule, a broader concept of non justiciability is required, which encompasses aspects of the conduct of military operations abroad as well as the high policy decision to engage in them. The courts may need to hear evidence and find facts in order to determine whether the acts in question fall within this category [33]. But the doctrine must be narrowly confined to a class of acts which involve an exercise of sovereign power, inherently governmental in nature, committed abroad, with the prior authority or subsequent ratification of the Crown, in the conduct of foreign relations of the Crown. The class of acts must be so closely connected to that policy to be necessary in pursuing it. It extends at least to the conduct of military operations which are themselves lawful in international law. The Government accepts that it cannot apply to acts of torture or to the maltreatment of detainees [36 37, 72, 81]. On the presently assumed facts, the respondents detention by Her Majestys forces and transfers out of British custody were steps taken pursuant to deliberately formed policy against persons reasonably suspected to be insurgents, in the context and furtherance of foreign military operations during a time of armed conflict, and were thus Crown acts of state for which the Government cannot be held liable in proceedings for common law damages [75, 95]. Lord Mance considers that the underlying principle of Crown act of state is one of non justiciability (or judicial abstention or restraint) and it creates unnecessary confusion to suggest that it has two branches [47]. Lord Sumptions analysis is that Crown act of state does offer a defence, but he doubts whether it helps to treat the doctrine as comprising two rules, and in any event in the present context the two rules merge into one [80]. Lord Neuberger agrees with Lord Sumption that the doctrine is ultimately based on the need for consistency or coherence in the distribution of functions between the executive and the judiciary in the United Kingdoms constitutional arrangements. It is not that a judge lacks the information or expertise to resolve the issue, but rather that there are certain governmental acts which owing to their nature or circumstances are not susceptible to judicial assessment [104]. The doctrine was not abolished by the Crown Proceedings Act 1947, which preserved the previous law by the proviso in section 2(1) [41]. It is also compatible with the right to a fair trial protected by article 6 of the European Convention on Human Rights, as it is clearly a rule of substantive law rather than a procedural bar [45]. The appeal is therefore allowed and a declaration substituted to the effect that, in proceedings in tort governed by foreign law, the Government may rely on the doctrine of Crown act of state to preclude the court passing judgment on the claim if the circumstances are such as stated in paragraphs 36 37 of this judgment [46].

These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].

The claimants, who have been given anonymity, seek damages for personal injuries suffered while they were children living in the area of the defendant council. They maintain that the injuries were suffered as a result of the councils negligent failure to exercise its powers under the Children Act 1989 (the 1989 Act) so as to protect them from harm at the hands of third parties. The claimants allege that in May 2006 they and their mother were placed by the council in a house on an estate in Poole next to a family who, to the councils knowledge, persistently engaged in anti social behaviour. The claimants and their mother became the target of harassment and abuse at the hands of this family, which persisted over a period of several years until they were re housed in December 2011. This included vandalism of the mothers car, attacks on the family home, threats of violence, verbal abuse, and physical assaults on the mother and one of the claimants. As a result, the claimants suffered physical and psychological harm. During the period in question, both claimants were identified by the council as children in need as defined in the 1989 Act, and had social workers allocated to them. The claimants initially brought their claim on the basis that the council had been negligent in the exercise of both its housing functions and its functions under the 1989 Act. The claim was struck out by Master Edelman on the basis that no relevant duty of care towards the claimants arose out of the statutory powers and duties relied on. The claimants appealed in relation the councils functions under the 1989 Act only. The appeal was allowed by Mrs Justice Slade in the High Court. The Court of Appeal then allowed the councils further appeal. The claimants now appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. The claimants particulars of claim do not disclose any recognisable basis for a cause of action. The case should not proceed to trial. The claimants focus on section 17 and 47 of the 1989 Act, but it is accepted that the Act does not create a statutory cause of action. Therefore, the question is whether local authorities may be liable for breach of a common law duty of care in relation to the performance of their functions under the Act. [25] Public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm. However, they can come under a common law duty to protect someone from harm in circumstances where the principles applicable to private individuals or bodies would also impose such a duty, as for example where the authority has created the source of danger or assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation. [65] The present case is not one where the council is alleged to have harmed the claimants, but one in which the council is alleged to have failed to provide a benefit to the claimants by protecting them from harm. [74] The claimants case is that the council had assumed a responsibility towards them to take reasonable care in investigating and monitoring their position. If such care had been taken, the council would have exercised its powers under the 1989 Act to remove the claimants from their home into at least temporary care. The councils conduct in investigating and monitoring the claimants position did not, however, involve the provision of a service to them on which they or their mother could be expected to rely. It could not be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. The council therefore did not assume a responsibility towards them. [80] [81] The claimants also advance an alternative claim on the basis that the council is vicariously liable for negligence by the social workers in its employment. There is no doubt that, in carrying out the councils statutory functions, the social workers were under a contractual duty to the council to exercise proper professional skill and care. The question is whether, in addition, they also owed a similar duty to the claimants under the law of tort. That depends on whether the social workers assumed a responsibility towards the claimants to perform their functions with reasonable care. [86] A defendant may assume responsibility to a claimant where he undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken. Such an undertaking may be express but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. [88] In the circumstances of this case, however, the particulars of claim do not set out any basis on which such an assumption of responsibility might be established at trial. [89] Any uncertainty as to whether this case is one which can properly be struck out is eliminated by the further difficulties that arise in relation to the claimants case that the council breached its duty of care by failing to remove the claimants from their home into, at least, temporary care. In order to obtain a care order under the relevant provisions, it would have been necessary to establish that the claimants were suffering, or were likely to suffer, significant harm which was attributable to a lack, or likely lack, of reasonable parental care. The harm suffered by the claimants was attributable to the conduct of the neighbouring family, rather than a lack of reasonable parental care. There were simply no grounds for removing the children from their mother. [90]

For the purposes of the appeal, the Court was invited to assume that Mr Gubay controlled a leisure company, Langstone, of which Mr Willers was a director. Mr Willers was later dismissed as director of Langstone and in 2010 Langstone sued Mr Willers for alleged breach of contractual and fiduciary duties in pursuing litigation. On 28 March 2013, Langstone discontinued its claim against Mr Willers. Mr Willers claimed that the claim brought against him by Langstone was part of a campaign by Mr Gubay to do him harm. Consequently he sued Mr Gubay for malicious prosecution. It was not disputed that the alleged actions of Mr Gubay constituted the necessary ingredients for a claim in malicious prosecution (on the assumption Mr Willers could substantiate such claims at trial); the question was whether a claim in malicious prosecution could be brought in relation to civil proceedings by an individual against another individual. Malicious prosecution already exists in relation to criminal proceedings. If a malicious prosecution did exist in relation to civil proceedings as between private individuals, then Mr Willers claim would be permitted to go to trial. The Supreme Court allows Mr Willers appeal by a majority of 5 to 4 ruling that the entirety of Mr Willers claim should be permitted to go to trial. Lord Toulson (with whom Lady Hale, Lord Kerr and Lord Wilson agree) gives the lead judgment. Lord Clarke delivers a concurring judgment. Lords Neuberger, Mance, Sumption and Reed give dissenting judgments. It seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it [43]. The tort will not deter those who have valid claims. This was the argument advanced for not allowing the tort in criminal proceedings. It has no greater merit in civil proceedings [44]. There is a public interest in finality and in avoiding unnecessary satellite litigation, but an action for malicious prosecution does not amount to a collateral attack on the outcome of the first proceedings [46]. The tort does not create a duty of care. There is a great difference between imposing a duty of care and imposing a liability for maliciously instituting proceedings without reasonable or probable cause [49]. Over the last 400 years there has been a volume of case law about malice, and the related requirement of absence of reasonable and probable cause, for the purposes of the tort of malicious prosecution [53]. To make out malicious prosecution it is well established that the requirements of absence of reasonable and probable cause and malice are separate requirements although they may be entwined. In order to have reasonable and probable cause, the defendant does not have to believe that the proceedings will succeed. It is enough that, on the material on which he acted, there was a proper case to lay before the court. Malice is an additional requirement. As applied to malicious prosecution, it requires the claimant to prove that the defendant deliberately misused the process of the court. The most obvious case is where the claimant can prove that the defendant brought the proceedings in the knowledge that they were without foundation. But the authorities show that there may be other instances of abuse. A person, for example, may be indifferent whether the allegation is supportable and may bring the proceedings, not for the bona fide purpose of trying that issue, but to secure some extraneous benefit to which he has no colour of a right. The critical feature which has to be proved is that the proceedings instituted by the defendant were not a bona fide use of the courts process [54 55]. The combination of requirements that the claimant must prove not only the absence of reasonable and probable cause, but also that the defendant did not have a bona fide reason to bring the proceedings, means that the claimant has a heavy burden to discharge [56]. Lord Clarke delivers a concurring judgment by reference to the arrest of ships, the ingredients of the tort of misfeasance in public office and the close affinity between malicious prosecution of criminal proceedings and malicious prosecution of civil proceedings [60 91]. Lord Neuberger delivers a dissenting judgment with twelve reasons for why the tort of malicious prosecution should not available in respect of civil proceedings between one private litigant and another as well as in criminal proceedings. The key reasons are that the tort would be inconsistent with the general rule that a litigant owes no duty to his opponent in the conduct of civil litigation [157], inconsistent with witness immunity from civil liability [158], create a danger of satellite litigation [163] and may have a chilling effect on the bringing civil proceedings [166]. Lord Mance delivers a dissenting judgment. The extension of malicious prosecution is not supported by the authorities [95 129] or by policy because, for example, there is no duty of care owed between litigants [130 140, see 135]. Lord Sumption adds a dissenting judgment. When recognising new species of non consensual liability, the common law must develop coherently. The recognition of a general liability for maliciously prosecuting civil proceedings circumvents the principled limits that the courts have imposed on the tort of abuse [178]. Its developments must also be warranted by current values and social conditions. The courts have far more extensive powers today than they did a century and a half ago to prevent abuse of their procedures [179]. Lord Reed adds a dissenting judgment in agreement with Lords Neuberger and Mance adding observations including a caution against relying on 16th to 18th century cases in a judgments reasoning, especially when constructing their historical context may be difficult [182 3].

Prior to 4 October 2007, Mr and Mrs Fielding, (the Defendants) were directors and controlling shareholders of Burnden Holdings (UK) Limited (the Claimant). The Claimant was the holding company of a number of trading subsidiaries, including Vital Energi Utilities Ltd (Vital). On 4 October 2007, the shareholders of the Claimant exchanged their shares for shares in a new holding company for the group, BHU Holdings Ltd (BHUH). On 12 October 20071, in an approved transaction, the Claimant effected a distribution in specie of its shareholding in Vital to BHUH. Subsequently, the shareholding in Vital was transferred to another new holding company (VHL). Mrs Fielding later sold her shareholding in VHL, and the Claimant went into liquidation. On 15 October 2013, more than six years after the 12 October 2007 distribution, the Claimant, by its liquidator, issued proceedings against the Defendants for the unlawful distribution in specie of the Claimants shareholding in Vital. This was outside of the six year limitation period set out in section 21(3) of the Limitation Act 1980 in respect of an action by a beneficiary for breach of trust. The Defendants applied to the High Court for summary judgment on the basis that the claim was time barred. For the purposes of the present appeal, it is assumed that the distribution was unlawful, because this appeal concerns only the limitation issues; however, the unlawfulness of the distribution is contested by the Defendants in the main proceedings. The High Court granted summary judgment in favour of the Defendants on the ground that the claim was time barred. The Court of Appeal set aside the judges order for summary judgment on the basis that the limitation period did not run against the Claimant, because section 21(1)(b) of the Limitation Act 1980 (section 21(1)(b)) provides that no limitation period applies to an action by a beneficiary under a trust to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. The Court of Appeal further held that, in any event, there was a triable issue as to whether section 32 of the Limitation Act 1980 (section 32) applied. Section 32 provides that where any relevant fact has been deliberately concealed by the Defendant, the period of limitation does not begin to run until the plaintiff has, or could have, discovered the concealment. The Defendants appealed to the Supreme Court on the proper construction of section 21(1)(b) (in particular whether company directors are in possession of or have previously received trust property within the meaning of that section), and section 32.2 1 The date of this transaction is in issue in the main proceedings, but for the purposes of this appeal, 12 October 2007 is accepted as the relevant date. 2 Since the Court of Appeal judgment, the Claimant has amended its claim to include an allegation of fraud. Under section 21(1)(a) of the Limitation Act, this means there could not now be summary judgment for the Defendants. Nonetheless the issue as to the meaning of section 21(1)(b) is of sufficient importance to have made it appropriate for this appeal (for which permission had been obtained prior to the amendment pleading fraud) to proceed. The Supreme Court unanimously dismisses the appeal, finding that section 21(1)(b) applies to trustees who are company directors, who are to be treated as being in possession of the trust property from the outset. The Court declines to express a final view on section 32. Lord Briggs gives the judgment, with which the rest of the Court agrees. Section 21 For the purposes of section 21, the Defendants are regarded as trustees, because they are entrusted with the stewardship of the companys property and owe fiduciary duties to the company in respect of that stewardship. The company is regarded as the beneficiary of the trust under section 21 [11]. Contrary to the Defendants submissions, section 21(1)(b) does not become inapplicable merely because the misappropriated property has remained legally and beneficially owned by corporate vehicles, rather than having become vested in law or in equity in the defaulting directors [16]. The purpose of section 21(1)(b), as laid down in In re Timmis, Nixon v Smith [1902] 1 Ch 176 and JJ Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, is to give a trustee the benefit of the lapse of time when, although he had done something legally or technically wrong, he had done nothing morally wrong or dishonest. It is not intended to protect him where, if he pleaded the statute, he would come off with something he ought not to have [17]. Section 21 is primarily aimed at express trustees and is applicable to company directors by a process of analogy. An express trustee might or might not from time to time be in possession or receipt of the trust property [18]. By contrast, in the context of company property, directors are to be treated as being in possession of the trust property from the outset. It is precisely because, under the typical constitution of an English company, the directors are the fiduciary stewards of the companys property, that they are trustees within the meaning of section 21. If their misappropriation of the companys property amounts to a conversion of it to their own use, they will necessarily have previously received it, by virtue of being the fiduciary stewards of it as directors [19]. In relation to trustees who are company directors, it may be that the requirement in section 21(1)(b) that the property be previously received by them adds little or nothing to the other conditions for the disapplication of the limitation period. However, that requirement is not redundant in relation to trustees generally [20]. On the assumed facts of the present case, the Defendants converted the companys shareholding in Vital when they procured or participated in the unlawful distribution of it to BHUH. By the time of that conversion the defendants had previously received the property because, as directors of the Claimant, they had been its fiduciary stewards from the outset [22]. Section 32 In depth analysis of the section 32 issue would take the court into a minefield of difficulties. It is not necessary to decide this point because of the recent plea of fraud, and because of this courts decision about the meaning of section 21, which mean the issue is unsuitable for summary judgment. Accordingly the court expresses no view on the correctness of the Court of Appeals approach to section 32(2) [26].

The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].

This appeal concerns the extent of the power of the Sea Fish Industry Authority to impose a levy on persons engaged in the sea fish industry and the compatibility with EU law of the levy imposed. The Sea Fish Industry Authority (the Authority) is established under the Fisheries Act 1981 (the 1981 Act) for the purposes of promoting the efficiency and serving the interests of the sea fish industry. Section 4(3) of the 1981 Act provides that regulations may be made imposing a levy on persons engaged in the sea fish industry in respect of the weight of sea fish or sea fish products landed in the United Kingdom. The regulations which have been made in pursuance of this power are the Sea Fish Industry Authority (Levy) Regulations 1995 (the 1995 Regulations). They expressly make a levy payable not only on sea fish and sea fish products first brought to shore in the United Kingdom, but also on imported sea fish and sea fish products. Bloomsbury International Limited and the other Respondents are importers who brought these proceedings to challenge the validity of levies made on them in respect of imports. The Department for the Environment, Food and Rural Affairs, and the Authority appeared in the proceedings to defend the validity of the levy. The first basis of challenge was that the power to levy contained in the 1981 Act did not extend to imposing a levy in respect of sea fish or parts of sea fish first brought to shore outside the United Kingdom and only later imported into the United Kingdom. The second basis of challenge was that even if the statutory power did extend so far, the imposition of such a levy was and is a charge equivalent to a customs duty and therefore contrary to Articles 28 and 30 of the Treaty on the Functioning of the European Union (TFEU). Hamblen J dismissed the claim at first instance, rejecting both grounds of challenge. An appeal against that decision was upheld by the Court of Appeal, which acceded to both grounds. The Appellants then appealed to the Supreme Court. The Supreme Court unanimously allows the appeal, holding that the statutory power extends to imposing a levy in respect of imported sea fish or parts of sea fish and that such a levy is not a charge equivalent to a customs duty contrary to EU law. Lord Mance gives the lead judgment and Lord Phillips gives an additional judgment on the first issue only. The first issue was whether the statutory power permitted the imposition of a levy on imported sea fish and sea fish products. Lord Mance noted that there is a choice between a wider and a narrower sense of the word landed in section 4(3) of the 1981 Act. The wider sense would cover any form of bringing into the United Kingdom, commonly by sea or air, wherever the sea fish or sea fish product may have been first brought to shore after catch. The narrower sense would cover only the first bringing to shore after catch. In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. The Authority is set up by the 1981 Act to promote the efficiency of the sea fish industry, which is defined specifically to include importers. Thus the purpose and scheme of the 1981 Act are expressed in terms extending to importers generally. Yet the narrower sense of the word landed would mean that very few such importers actually contributed to the levy. [11] Further, the predecessor schemes to that introduced by the 1981 Act had all involved levies imposed on imports and no reason was suggested for any change of policy under the 1981 Act so as to exclude fish importations and importers. In addition, section 4(8) of the 1981 Act expressly included within the meaning of landed the bringing of sea fish and sea fish products through the Channel Tunnel. Although not expressly defined so as to include imports by ferry or air, it would be discriminatory and irrational for the 1981 Act to distinguish between that mode of importation and by Channel Tunnel. [13]; [16] Lord Phillips also remarked on the unusual feature in this case that for nearly thirty years everyone concerned has proceeded on the basis that the phrase should be given the wider meaning. In those circumstances there must be, at the least, a powerful presumption that the meaning that has customarily been given to the phrase is the correct one. [58] As to the second issue, Articles 28 and 30 TFEU prohibit and render void charges having equivalent effect to a customs duty (CEEs). The principal feature of a CEE is that it is levied solely or exclusively by reason of goods crossing a frontier within the European Union, whereas domestic products are excluded from a similar charge. In respect of the levy in question, it is imposed by reason of the sea fish or sea fish product crossing a frontier in the European Union. As to whether the levy is imposed solely or exclusively by reason of the crossing of the frontier, however, this will not be the case if the levy forms part of a general system of internal dues applied systematically to categories of products according to objective criteria and without regard to the origin of the products. The levy does form part of such a system. In particular, the Court of Appeal was wrong to suggest that sea fish products which are both manufactured and sold in the United Kingdom would escape the levy, in contrast to imported sea fish products: the levy would be payable on the fish content of the domestic products either when the constituent fish was first sold, or if there had been no prior sale, at the sale of the fish product. Nor could it be said that the levy would constitute a CEE on the basis that it would involve the imposition of charges at differing production or marketing stages, which is impermissible. The levy is consistently imposed at the point at which the sea fish is placed on the market and enters the supply chain. [40]; [43]; [47] For these reasons the appeal was allowed and Respondents challenge to the levy dismissed. [54]

These three appeals concern requests for extradition under European arrest warrants (EAWs). The Lithuanian Ministry of Justice issued EAWs for Mindaugas Bucnys based on convictions for housebreaking and fraud and for Marius Sakalis based on his conviction for sexual assaults. The Estonian Ministry of Justice issued an EAW for Mr Dimitri Lavrov based on a conviction for murder. EAWs are warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on surrender procedures between member states of the EU (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 (the 2003 Act) was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA) (now the National Crime Agency (NCA), the designated authority under section 2(8), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well founded in the case of either or both of the Ministries. On 12 December 2012, the Divisional Court answered the first question affirmatively and the second negatively. As to the third, it concluded that a ministry of justice would, under European law, be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98), and that, in this connection, the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant. On the evidence before it, it held that the EAWs issued by the Lithuanian Ministry in respect of Mr Bucnys and Mr Sakalis were valid, while the EAW issued by the Estonian Ministry in respect of Mr Lavrov was invalid. Mr Bucnys and Mr Sakalis now appeal, while the Estonian Ministry appeals in the case of Mr Lavrov. During the appeal further evidence was adduced about the legal position and procedures in Lithuania and Estonia. Since the hearing, the Court has been informed by those instructed by Mr Bucnys that he has [regrettably] died. The issue remains of importance, and this judgment records the Courts conclusions on it. The Supreme Court unanimously holds that the arrest warrants issued for Mr Bucnys and Mr Lavrov were valid, whereas that issued for Mr Sakalis was not. Mr Bucnyss appeal is therefore dismissed. Mr Sakaliss appeal and the Estonian Ministrys appeal in Mr Lavrovs case are allowed. Whether a justice ministry can be a judicial authority Mr Bucnys, Mr Sakalis and Mr Lavrov submitted that the relevant ministries of justice could not be a judicial authority because they were not part of the courts or judiciary as ordinarily understood. The Supreme Court, in a judgment given by Lord Mance with which all other Justices agree, holds that member states were not intended to have carte blanche to define judicial authority however they choose. The concept is embedded in European Union law. The Framework Decision is based on article 31(1)(a) of the former Treaty of European Union, which itself distinguishes between ministries and judicial authorities [23]. The concept falls under EU law to be interpreted by looking at the instruments context and intended effects [45]. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states [45]. An EAW issued by a ministry for a convicted person with a view to his or her surrender can be regarded as issued by a judicial authority if the ministry under the relevant national law issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by, the court responsible for the sentence or by some other person or body properly regarded as a judicial authority responsible for its execution [66]. If this condition is satisfied, the existence of a discretion on the part of the ministry not to issue a EAW which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this [66]. That could work only in favour of the person sought by the warrant and would be in the spirit of the Framework Decision [56]. In issuing the EAWs for the arrest of Mr Bucnys and Mr Lavrov, the respective ministries acted only at the request of and by way of endorsement of a decision made by a court responsible for the sentence. These two EAWs therefore satisfied the above test [66] and are valid. However, in issuing the EAW for Mr Sakaliss arrest, the Lithuanian ministry was acting only on a request from the prison service, and this EAW did not meet the above test and is invalid [67]. The certification of the requests Mr Bucnys, Mr Sakalis and Mr Lavrov also submitted that the terms of section 2(7) of the 2003 Act meant that a ministry of justice could be certified by SOCA only if it was responsible for issuing domestic arrest warrants rather than European ones. While that was not inconsistent with the bare language of the Act, such an interpretation would involve SOCA in onerous investigations of overseas practice and may have perverse results where, for example, the European warrants with which Part 1 is concerned were issued by a different, but more senior, judicial authority than the domestic ones [26 28]. The correct interpretation was that section 2(7) referred to the authority responsible for issuing European arrest warrants [33]. The warrants and certification were thus unobjectionable in that respect.

A special rule has been developed for cases brought by persons who contract mesothelioma after being wrongly exposed to asbestos, known as the Fairchild exception after the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. This provides that defendants whose breaches of their duty of care materially increase the risk of mesothelioma are jointly and severally liable for the damage suffered if mesothelioma does in fact develop. The rule relaxes the usual requirement that a claimant must show that it is more likely than not that the harm he has suffered has been caused by the defendants breach, in order to reflect the fact that medical science cannot presently determine which asbestos fibre or fibres has caused the mesothelioma to develop, often decades later. The issue in these two appeals was whether this special rule applies in cases where only one defendant is proved to have exposed the victims to asbestos, but where the victims were also at risk of developing the disease from environmental exposure to asbestos in the general atmosphere. Mrs Karen Sienkiewicz is the daughter and administratrix of the estate of the late Mrs Enid Costello, who died of mesothelioma on 21 January 2006 at the age of 74. Mrs Costello had worked in an office at factory premises manufacturing steel drums for employers who were found to have wrongly exposed her to asbestos, although the level of that exposure was very light. This was calculated by the trial judge to have increased her total level of exposure, over the general environmental exposure, by 18%. Mr Barre Willmore is the husband and administrator of the estate of the late Dianne Willmore who died of mesothelioma on 15 October 2009 aged 49. She was found to have been exposed to asbestos at her secondary school. In Mrs Costellos case, the judge held that the Fairchild exception did not apply and that she had failed to establish that her occupational exposure to asbestos was the likely cause of her disease. This decision was reversed by the Court of Appeal, which entered judgment on liability with damages to be assessed. The judge in Mrs Willmores case applied the Fairchild exception and awarded her damages of 240,000. The Court of Appeal upheld his decision. The defendants in each case appealed to the Supreme Court, arguing that the Fairchild exception should have been held to be inapplicable when proceedings are directed against one defendant. They submitted that, in such cases, liability could only be established if a claimant could prove on the balance of probability that the mesothelioma was caused by the defendants exposure ie that such exposure had at least doubled the risk of the victim developing mesothelioma. The Supreme Court unanimously dismisses the appeals. It holds that the Fairchild exception applies to cases of mesothelioma involving a single defendant and that there is no requirement for a claimant to show that the defendants breach of duty doubled the risk of developing the disease. The main judgment is given by Lord Phillips, with each of the other justices adding shorter judgments concurring in the result. Numbers in square brackets below are to paragraphs in the judgment. Knowledge about mesothelioma is based in part on medical science and in part on statistical analysis or epidemiology. It is summarised at [19] and in the annex after [112]. Much remains still to be discovered. The courts may revert to the conventional causation test if advances in medical science in relation to this disease make such a step appropriate [70][142][208]. The decision in Fairchild was made in the context of claims against multiple employers who had each been found to be in breach of duty. It left open the question of whether the principle applied where other possible sources of injury were similar but lawful acts of someone else or a natural occurrence. In the subsequent case of Barker v Corus [2006] UKHL 20 the House of Lords answered this question by refining the exception so as to render each employer liable only for the proportion of damages which represented his contribution to the risk. Parliament then intervened to overturn this apportionment of damages, by providing in section 3 of the Compensation Act 2006 that where a person was liable under the common law in tort to a victim who had contracted mesothelioma, that liability was for the whole of the damage caused by the disease, jointly and severally with any other responsible person. Parliament has therefore legislated to impose draconian consequences on an employer or his insurers who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos and the court had to have regard to this when considering the issues in these appeals [58][131][167][185]. The Fairchild exception did apply to single defendant cases [103][113]. The doubles the risk test for causation was therefore only potentially relevant in connection with the question of what constituted a material increase of risk. There was no justification for adopting the test as a benchmark for this. Whether exposure was too insignificant to be taken into account, having regard to the overall exposure, was a matter for the judge on the facts of the particular case [107 108]. Epidemiological evidence alone is not a satisfactory basis for making findings of causation. The exercise of comparing the statistical relationship between exposure and the incidence of the disease with the experience of the individual victim is particularly problematic in mesothelioma cases because of the very long latency of the disease [97 102][163][172] Accordingly the appeals must be dismissed. Even though the judge in Mrs Costellos case did not expressly consider whether the exposure in her case materially increased the risk, if he had thought it insignificant he would have said so [109]. In Mrs Willmores case, the challenges to the judges findings of fact also failed. The court considered that they had been very generous to Mrs Willmore but that it was not justified in taking the exceptional step of disturbing them [166]

These appeals concern the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (the Act) and subject to regular independent checks. P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal. P is an adult born with cerebral palsy and Downs syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in Ps best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P. The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allows the appeals. MIG, MEG and P have all been deprived of their liberty. Lady Hale, with whom Lord Sumption agrees, gives the main judgment. Lord Neuberger agrees with Lady Hale in an additional judgment and Lord Kerr agrees with Lord Neuberger and Lady Hale, also in a separate judgment. Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agrees with them in an additional judgment. The DOLS were introduced into the Act following the case of HL v United Kingdom (2004) 40 EHRR 761, which found that the treatment of a severely mentally disabled adult after his informal admission to hospital amounted to a deprivation of his liberty by the hospital. Their purpose is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained [8 9]. The European Court of Human Rights (ECtHR) has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court [32]. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities [45]. What would be a deprivation of liberty for a non disabled person is also a deprivation for a disabled person [46]. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave [49]. The persons compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question [50, 87]. It follows that in Ps case the judge applied the right test and his decision should be restored [51]. MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities [54]. Accordingly the decisions of the courts below must set aside and a declaration made that their living arrangements constitute a deprivation of liberty within the meaning of s 64(5) of the Act. Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS [57 58]. Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. They consider that the degree of intrusion is relevant to the concept of deprivation of liberty, and in the appellants cases the care regime is no more intrusive or confining than required for the protection and well being of the persons concerned [90]. The ECtHR has yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities. It remains wedded to a case specific test [94]. They are concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty [99].

This appeal concerns the meaning of prohibitively expensive under the Aarhus Convention. The proceedings concerned a cement works in Rugby. On 12 August 2003, the Environment Agency issued a permit to continue operations with an alteration in its fuel from coal and petroleum coke to shredded tyres. This proposal gave rise to a public campaign on environmental grounds. The public campaign was being led by Mrs Pallikaropolous who had committed substantial funds of her own to the campaign. Following the decision of the Rugby Borough Council not to pursue its own claim for judicial review, Mrs Pallikaropolous was reported as pledging to carry on the battle using legal aid and, because she was too rich to get legal aid, asked for someone to come forward to take the case under legal aid. A local resident, Mr David Edwards, began judicial review proceedings on 28 October 2003 challenging the Agencys decision. The judge inferred that Mr David Edwards had been put up as a claimant in order to secure public funding of the claim. The substantive application for judicial review was dismissed on 8 February 2006. Mr Edwards appealed to the Court of Appeal. On the final day of the Court of Appeal hearing, Mr Edwards withdrew his instructions from both solicitors and counsel. Mrs Pallikaropolous applied without objection to be joined as an additional appellant in the public interest to enable the appeal to be concluded. Her potential liability to costs in the Court of Appeal was capped at 2,000. Following dismissal of the appeal, the respondents costs capped at this level were awarded against her. Mrs Pallikaropolous was given leave to appeal by the House of Lords. She provided security for costs in the sum of 25,000 and the appeal proceeded. Her appeal was dismissed by the House of Lords. The present dispute arises out of the order for costs of the appeal in the House of Lords made in favour of the respondents. The Environment Agency and the Secretary of State submitted bills totally respectively 55,810 and 32,290. The Supreme Court made a reference to the Court of Justice of the European Union (CJEU) for guidance relating to the expression not prohibitively expensive. While the reference was pending, the government issued a consultation paper on the issue of cost capping and the scope for providing clearer guidance in the procedural rules. The proposals were given effect to by amendment to the Civil Procedure Rules. The Supreme Court makes an order for costs in the amount of 25,000 in favour of the respondents jointly. Lord Carnwath gives the lead judgment with which Lord Neuberger, Lord Hope, Lord Mance and Lord Clarke agree. The following points could be extracted from the CJEUs Edwards judgment: (i) The test is not purely subjective. The cost of proceedings must not exceed the financial resources of the person concerned nor appear to be objectively unreasonable, at least in certain cases. (ii) The court did not give definitive guidance as to how to assess what is objectively unreasonable. (iii) The court could take into account the merits of the case: that is whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages. (4)That the claimant has not in fact been deterred for carrying on the proceedings is not itself determinative. (5) The same criteria are to be applied on appeal as at first instance [28]. The respondents are not now seeking recovery of their full costs. They have agreed to limit their joint claim to 25,000 which is the amount of security already paid by the appellant as the condition for bringing the appeal. It is impossible on the material available to hold that the order was subjectively unreasonable. The more difficult question is whether there should be some objectively determined lower limit, and if so how it should be assessed. Although this was one of the main issues raised by the reference, the European court has not offered a simple or straightforward answer [30 31]. Of the five factors mentioned by the court, the second and fifth can be discounted immediately. There is no evidence that the appellant had any economic interest of her own in the proceedings and, given the grant of permission at each stage, they could not be said to be frivolous [34]. The relative complexity of the case is evidenced by the fact that it took three days before the House [35]. The other two factors (i) the prospects of success and (iii) the importance of the case for the protection of the environment are at best neutral from the applicants point of view [36]. Taking factors mentioned by the court into account, it is impossible to say that the figure of 25,000, viewed objectively, is unreasonably high, either on its own or in conjunction with the 2,000 awarded in the Court of Appeal [37].

The European Union distributes money from European Structural Funds to Member States in order to promote the overall harmonious development of the EU and in particular to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured regions (Article 174 TFEU). Funds are allocated in seven year cycles. The previous two rounds were for 2000 2006 and 2007 2013. The most recent round was for 2014 2020 and took place pursuant to Regulation (EU) 1303/2013 (the 2013 Regulation). Regions within Member States are classified based on the relationship between their GDP per head and the EU average, with different categories used in each round. The European Commission notionally allocates funds to Member States according to a formula based on how many regions in each category they have, but there is no formula setting out how allocations are to be made within Member States. That decision is jointly determined under a Partnership Agreement which must be proposed by the Member State and approved by the Commission. In the UK this is the responsibility of the Respondent, the Secretary of State for Business, Innovation and Skills. In 2000 2006, Merseyside and South Yorkshire were both Objective 1 regions, corresponding to the current less developed category, with a GDP per head less than 75% of the EU average. They received the most generous level of funding under the UKs Partnership Agreement. In 2007 2013, there were two principal categories, convergence regions (with a GDP per head less than 75% of the EU average), and competitiveness regions (with a GDP per head greater than 75% of the EU average). However, the EU average GDP per head decreased due to the accession of 10 new Member States. There were carved out of the category of competitiveness regions two special categories commonly referred to as phasing out and phasing in regions. Phasing out regions were regions which would have been convergence regions but moved above the 75% threshold as a result of the reduction of the EU average. Phasing in regions were regions which moved above the 75% threshold and would have done so in any event. Merseyside and South Yorkshire were both phasing in regions in 2007 2013. Highlands & Islands was a phasing out region. In order to ease the transition to the higher category and the consequent reduction of support, both phasing in and phasing out regions were eligible for additional support from the Commission on a transitional and specific basis. That support tapered down over the course of the seven year period to the national average level of support for competitiveness regions in 2013. In 2014 2020, Merseyside and South Yorkshire became transition regions, with a GDP per head between 75% and 90% of the EU average. The UK received 5% less money overall for 2014 2020 than it had for 2007 2013. The Secretary of State had to decide how to allocate it. First, he decided that each of the four countries comprising the UK would have its overall funding reduced by 5% compared with the previous period. Northern Ireland, a single region, therefore had its funding cut by 5% altogether. Second, he decided that each English transition region would receive an allocation per year for 2014 2020 representing an increase of 15.7% on its allocation for 2013, the last year of the previous period. For Merseyside and South Yorkshire, these decisions resulted in a 61% cut in funding altogether compared with the whole of the 2007 2013 period. This was because the new allocations were based on allocations for 2013, and therefore took no account of the transitional funding received in the earlier period. In Scotland, Highland & Islands had its funding cut by 5% altogether. This was the result of a decision made by the Secretary of State in consultation with the Scottish Ministers. The Commission has now approved the Secretary of States proposals. The Appellants say that Merseyside and South Yorkshire have unfairly been treated differently from: (i) the non English transition regions of Northern Ireland and Highland & Islands; and (ii) other English transition regions. Their arguments failed before Stewart J and in the Court of Appeal. They now appeal to the Supreme Court. The Court dismisses the appeal by a 4 3 majority (Lord Mance, Lord Carnwath and Lady Hale dissenting). Lord Sumption and Lord Neuberger both give reasoned judgments for the majority. Lord Hodge agrees with Lord Sumption and Lord Clarke agrees with both Lord Sumption and Lord Neuberger. Lord Mance and Lord Carnwath give dissenting judgments. Lady Hale agrees with Lord Mance and Lord Carnwath. The majority judgments Lord Sumption notes that the allocation made by the Secretary of State is amenable to judicial review, but a court should be cautious about intervening because it: (i) was a discretionary decision of a kind courts have traditionally been reluctant to disturb; (ii) involved particularly delicate questions about the distribution of finite domestic and EU resources, in which the legitimacy of the decision making process depends to a high degree on ministers political accountability; and (iii) has been approved by the Commission [21 24]. Lord Neuberger agrees that this is classic territory where executive decisions should be afforded a wide margin of discretion, but emphasises that the fact that a matter is one for democratic decision does not remove the need for judicial oversight [61 65]. Lord Sumption holds that the ultimate question for the court is whether there is enough of a relevant difference between Merseyside and South Yorkshire on the one hand and the remaining transition regions on the other to justify any difference in treatment [25 29]. Lord Neuberger analyses the Appellants objections as comprising two procedural attacks and two outcome attacks [52 60]. As to the first decision, to allocate to each of the UKs four countries 95% of what they had received for the previous period, Lord Sumption says that the Secretary of State did not unjustifiably discriminate. He was entitled to have regard to the constitutional settlement as between the component countries of the United Kingdom; nothing suggested that any countrys position had significantly changed since the last allocation; and a decision based on broad qualitative considerations rather than purely GDP per head is consistent with the 2013 Regulation [30 36]. Lord Neuberger agrees that it was procedurally legitimate for the Secretary of State to take into account the increasingly decentralised nature of UK administration and the political realities of devolution [75 78]. The disparities in outcome between Merseyside and South Yorkshire on the one hand and Highland & Islands and Northern Ireland on the other give pause for thought, but, bearing in mind the Secretary of States margin of discretion and the relevance of factors other than GDP per head, those disparities do not make the decision unlawful [87 99]. As to the second decision, to use 2013 as a baseline for the 2014 2020 allocations for English transition regions, Lord Sumption and Lord Neuberger both point out that the additional funding given to Merseyside and South Yorkshire in the previous period was transitional and specific and provided to smooth the passage to their being treated as competitiveness regions, so that basing the 2014 2020 allocations on their average allocations for the whole of 2007 2013 would have continued the impact of that funding beyond the period envisaged [37 44, 80 83]. For Lord Neuberger, there is force to the point that the use of the 2013 baseline deprives Merseyside and South Yorkshire of the uplift given to other northern regions, but this is outweighed by the discretionary and complex context and the legitimacy of the Secretary of States goals [84 85]. As a matter of outcome, he notes that other English transition regions received varying amounts unrelated to their GDP per head and that some allocations were less than or comparable to those of Merseyside and South Yorkshire [100 108]. Overall the Secretary of States approach is less considered and consultative than one would have hoped, but not unlawful [109 111]. The minority judgments Lord Mance and Lord Carnwath observe that the principle that a greater margin of discretion should be afforded where a decision is complex and judgment based does not exclude closer review of a decision which is based on irrelevant considerations or fails to treat like cases alike, particularly in light of the informality of the decision making process and (per Lord Mance) the lack of consultation in this case [142, 167]. Lord Mance explains that the combined effect of the two decisions was that Northern Ireland was guaranteed an allocation based on an assessment of its actual needs over the prior period, Highland & Islands received an allocation based on the average of its receipts as a transition region throughout the prior period, and the other English transition regions received allocations based on previous allocations calculated on the basis of each regions needs, including uplifts for northern regions. Merseyside and South Yorkshire, by contrast, received allocations without any uplift and not referable to any assessment of their actual needs or receipts over the prior period, even though by any measure they still fall well below the competitiveness region average [149 152]. The Secretary of States decision was unlawful because he took irrelevant considerations into account and treated like cases unalike and unlike cases alike [162]. Lord Carnwath agrees with Lord Mance [166]. He considers it illogical to deny to Merseyside and South Yorkshire the safety net protection given to Highland & Islands on the basis that it would lead to a 22% cut for the other English transition regions [180 186].

These three appeals each involve a challenge to an order for costs made by a High Court judge against a newspaper publisher following trial. Flood v Times Newspapers Limited (Flood) and Miller v Associated Newspapers Ltd (Miller) each involved an allegation that the newspaper had libelled the claimant, and Frost and others v MGN Ltd (Frost) involved allegations that the newspaper had unlawfully gathered private information about the claimants by hacking in to their phone messages. In each case, the newspaper publisher lost at trial and was ordered to pay the claimants costs. The claimants had each taken advantage of the costs regime introduced by the Access to Justice Act 1999 and reflected in the Civil Procedure Rules then in force, in particular Rule 44, (the 1999 Act regime). This regime enabled: (i) the claimants lawyers to agree under a conditional fee agreement (a CFA) to be paid nothing if the claim failed but to receive up to twice their normal fee if it succeeded; and/or (ii) the claimant to take out after the event (ATE) insurance against the risk of having to pay the defendants costs (with the insurer only being paid if the claim succeeded); and (iii) the claimant being able to recover from the defendant the success fee payable under the CFA, and the ATE insurance premium, if his claim succeeded. Following widespread criticism, the regime has now largely been replaced for claims commenced after 1st April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but not for defamation or privacy claims. A public consultation as to whether s.40 of the Crime and Courts Act 2013, which would introduce a new scheme for costs recovery for privacy and defamation claims against newspapers, has been launched. In Flood, Times Newspapers Limited (TNL) had defeated Mr Floods defamation claim in relation to hard copies of the publication, but had failed in relation to the electronic version, which they had failed to take down when they should have done. Nicola Davies J awarded Mr Flood damages of 60,000 and ordered TNL to pay all Mr Floods costs of the proceedings (including success fees and ATE premium), and this was upheld by the Court of Appeal. In Miller, Associated Newspapers Limited (ANL)s defence was rejected by Sharp J, and Mitting J subsequently concluded that he was bound by the decision of the House of Lords in Campbell v MGN Ltd (No 2) to hold that recovery of the success fee and ATE premium did not infringe ANLs Article 10 rights and ordered that ANL should reimburse Mr Miller his costs. In Frost, having found for the claimants, Mann J ordered MGN to pay their costs, including reasonable success fees and ATE premiums which they had incurred, as determined by the Costs Judge, and this was upheld by the Court of Appeal. The newspaper publishers appealed to the Supreme Court. In each appeal, the newspaper publisher relies upon the decision of the European Court of Human Rights in MGN Ltd v United Kingdom (MGN v UK), where the Court held, contrary to the decision of the House of Lords in Campbell v MGN Ltd (No2), that MGNs right to freedom of expression under Article 10 of the European Convention on Human Rights was infringed by the order to reimburse the success fee and ATE premium incurred by the claimant. The newspaper publishers now contend that the costs orders in the present appeals similarly infringe their rights under Article 10. In Flood, TNL also contend that, given their partial success, the costs order was so unreasonable as to be outside the ambit of the trial judges discretionary powers. The Supreme Court unanimously dismisses the newspaper publishers appeals. Lord Neuberger gives the lead judgment, with which the other Justices agree. The reasoning of the Strasbourg court in MGN v UK was full, careful and largely soundly based, and reflected widespread criticism of the 1999 Act regime which has led to significant changes [32 and 41]. However, as the UK Government is not a party to these appeals, it would be inappropriate to express a concluded view as to whether there is a general rule of domestic law that it would normally infringe a newspaper publishers rights under Article 10 to require it to reimburse the claimants success fee and ATE premium in a defamation or privacy case, unless it was necessary so to decide, and it is not [29]. It would be similarly inappropriate to grant a declaration of incompatibility of legislation containing the 1999 Act regime or the statutes which supersede it [64]. Assuming that there is such a general rule, to deny the claimants in Miller and Flood the ability to recover the success fee and ATE premium which they had incurred would infringe their rights under Article 1 of the First Protocol to the Convention. They had incurred financial obligations in reliance on a statute and had a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment [46 48]. It may be that the claimants Article 6 and 8 rights would also thereby be infringed as the regime aimed to enable access to the courts, and the present proceedings were brought to restore personal dignity [49 52]. Even if upholding the costs order in Miller and Flood would infringe the newspaper publishers article 10 rights for the reasons given in MGN v UK, the fundamental principle that citizens are entitled to assume that the law will not change retroactively would be directly infringed by the order sought. Freedom of expression is also a fundamental principle, but one which is less centrally engaged by the issue in this case: the infringement of the newspaper publishers rights is based on an indirect chilling effect [53]. The just and appropriate order under section 8(1) of the Human Rights Act is therefore to dismiss the appeals, as to allow them would be a graver infringement of the claimants rights than the infringement which the newspaper publishers will suffer if the appeals are dismissed [53 54]. In the appeal in Frost, such a rule could in any event have no proper application to facts. The information was obtained illegally and there could have been no real expectation that its publication would be in the public interest. The Article 10 rights of the newspaper publishers have greatly reduced weight in this context as compared with those of MGN in MGN v UK [58 63]. The trial judge in Flood was correct to start with the proposition that, prima facie, Mr Flood was the winner and ought to receive his costs [67]. In considering whether to alter this, the judge was entitled to regard TNLs aggressive and unconstructive attitude in correspondence as militating against departure [70 71], and to find that the costs of TNLs defence would have been incurred even if Mr Flood had conceded the part of his claim that was eventually unsuccessful [73]. The weight to be given to the fact that Mr Flood was only partially successful was a matter for the first instance judge, as was the decision to award costs on the basis that he was the overall winner rather than making an issues based order [74].

H is a three year old child whose parents separated before his birth. From the date of his birth until very recently, H has lived with his maternal grandmother, GB. Hs mother, GLB, lived with her mother and H intermittently at GBs home from the time he was born until July 2006. She left GBs home then and has not returned. In November 2006, GB was granted, by consent, a residence order in respect of H. On the same occasion orders for contact were made in favour of Hs father, RJB. In May 2008, RJB applied for a residence order in respect of H. By the time the application was heard in the Family Proceedings Court in March 2009, RJB had married and his new wife was expecting their child. RJBs application, which was supported by Hs mother, was refused. In making their decision, the justices noted that they had not found compelling reasons to disrupt the continuity of care that GB provided H. RJB appealed the justices decision. That appeal was successful in the High Court, the judge finding that the justices had been plainly wrong in making the residence order in favour of GB, having been distracted by the settled way in which H had been brought up by GB. In April 2009, the High Court made an order that H should reside with RJB. The order of the High Court was appealed by GB in the Court of Appeal. The Court of Appeal dismissed the appeal holding that in giving disproportionate weight to the status quo the justices had made an error of law sufficient to entitle the circuit judge to overrule their decision. Applying Re G (Children) (Residence: Same Sex Partner) [2006] 1 WLR 2305, and in particular the observations in that case of Lord Nicholls, the Court of Appeal held that although a childs welfare was the courts paramount consideration, the court should always bear in mind that, ordinarily, the rearing of a child by his biological parent could be expected to be in his best interests. The Supreme Court unanimously allowed the appeal by GB. In doing so, it reaffirmed the central message in Re G that, where in a case between private individuals a childs custody or upbringing is in question, the welfare of the child is the paramount consideration. The judgment delivered by Lord Kerr was the judgment of the court to which all of its members contributed. A childs welfare is the paramount consideration in the determination of the question of his or her residence. (Paragraphs [18] [19], [32] [37]) The justices decision was not plainly wrong. They had recognised that Hs welfare was the paramount consideration and had carefully evaluated the evidence before them, correctly weighing up the various competing factors. For this reason, both the judge and the Court of Appeal had erred in overturning the justices decision. (Paragraphs [9] [15], [37] [39]) Both the judge and the Court of Appeal misinterpreted Re G. When, in that case, Lord Nicholls said that courts should keep in mind that the interests of a child will normally be best served by being reared by his or her biological parent, he was doing no more than reflecting common experience that, in general, children tend to thrive when brought up by parents to whom they have been born. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the childs best interests. This is the paramount consideration. It is only as a contributor to the childs welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim. (Paragraphs [1], [17], [23] [25], [32] [37]) Any discussion of a childs right to be brought up by its natural parents is misplaced. The only consideration for the court is the childs welfare; to talk of a childs rights detracts from that consideration. (Paragraphs [18] [19]) In this case, there was reason to believe that if Hs bond with GB were broken his current stability would be threatened. Whilst RJB was assessed as capable of meeting Hs needs, he had recently undergone significant changes in his own domestic position and his arrangements were untested at the time the justices made their decision. In deciding where Hs best interests lay the justices were therefore right to give significant weight to maintaining the status quo in Hs living arrangements. (Paragraphs [40] [41])

These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependant wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].

This appeal raises the question of which immigration rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and consequently obtained British Citizenship. The Appellants are the wife and children of Israr Naimi (the Sponsor). The Sponsor came to the UK from Pakistan in 1999 and in December 2001 was granted refugee status and indefinite leave to remain. On 22 March 2005, the Sponsor was granted British citizenship. On 15 October 2005, the Appellants, who had remained in Pakistan, applied for entry clearance to join the Sponsor in the UK. The Appellants applications were considered under the Immigration Rules, House of Commons Paper 395 (the Rules). Para 281 of the Rules applies to spouses and civil partners of UK citizens and para 297 to children of UK citizens. Those paragraphs require the family of a UK citizen to meet certain accommodation and maintenance requirements before entry clearance is granted. By contrast, spouses and children of refugees who have been granted asylum in the UK may apply for entry clearance under paras 352A and 352D respectively, which do not require them to meet any accommodation or maintenance conditions. In making the applications for entry clearance, the Appellants also relied on their rights to respect for family life protected by Article 8 of the European Convention of Human Rights. The Appellants applications for entry clearance were refused on the grounds that the family could not meet the accommodation and maintenance requirements imposed by paras 281 and 297 of the Rules. The Appellants Article 8 arguments were also rejected. The Appellants appealed the decision, arguing that their cases should be considered under paras 352A and 352D. The Respondents case is that the exceptions granted to the family members of people granted asylum do not apply to the Appellants as the Sponsor had been granted British citizenship before their applications for entry clearance were made. The Respondent argued that the Appellants applications fell to be considered under paras 281 and 297 and that they must therefore satisfy the ordinary rules dealing with applications by family members of UK citizens. The Court of Appeal held that paras 352A and para 352D only applied in cases where the sponsor was currently recognised as a refugee. A refugee who thereafter obtained the citizenship of his host country lost his refugee status. In relation to the Article 8 claim, there was no interference with those rights as the Sponsor was free to return to Pakistan where the family as a whole could continue their family life. The Article 8 arguments having become academic in the meantime, the essential questions for the Supreme Court to consider were the proper construction of paras 352A and 352D of the Rules and whether those paragraphs apply to family members seeking entry to the UK where their sponsor has been recognised as a refugee but has become a British citizen before the date of the application for entry clearance. The Supreme Court unanimously allows the appeal of the first to the fifth appellants. The Court holds that paragraph 352A applied to the first appellant (the Sponsors wife) as a spouse of a refugee and paragraph 352D applied to the second to fifth appellants (the Sponsors children who were under the age of 18 at the relevant time) as children of a refugee. Lord Clarke delivered the judgment of the Court. In construing the Rules, the Court agrees with the Court of Appeal that the sponsor must have been granted asylum in order to be (1) a refugee within the meaning of the opening words of para 352A and of para 352E; (2) a person granted asylum within sub paras (i) and (ii) of para 352A and sub para (iv) of para 352D; and (3) a person who has been granted asylum within the opening words of para 352D. However, the Court does not agree with the Court of Appeal that there is an additional requirement, namely that the person granted asylum or the person who has been granted asylum must not have become a British citizen before the application for entry clearance is made. The Rules contain no express language to that effect and it is not implicit in the language used. The fact that British citizenship has been granted to the sponsor does not change the fact that the sponsor is a person who has been granted asylum (paras [31] [33], [36], [37]). In the light of the decision made at the hearing on the construction of paragraphs 352A and 352D, the Court did not hear oral submissions on any of the other issues raised in the written cases. In particular, the Court did not hear argument on what the position would be if, contrary to the Courts conclusion, paragraphs 352A and 352D would only have applied if they required that the sponsor remain a refugee after being granted British citizenship. The Court expresses no view upon these questions one way or the other (para [40]). Accordingly, the appeals of the first to fifth appellants are allowed.

The issue in this appeal is whether and in what circumstances a judge who has announced her decision in civil or family proceedings is entitled to change her mind. It arose in this case in care proceedings in a family court. The proceedings concern a child (S) and her half brother (T). Care proceedings were commenced in respect of both children after S was taken to hospital with serious injuries. A fact finding hearing was ordered to determine whether Ss injuries were non accidental and, if so, the identity of the perpetrator. The hearings lasted over several days, spread over several months because of the mothers mental health. It became common ground that the injuries were non accidental and the only possible perpetrators were the mother and father. On 15 December 2011 the judge, Judge Penna, gave a short oral judgment (the December judgment) finding that the father was the perpetrator and she invited submissions if the parties wanted further detail. She gave directions for the filing of expert evidence before a final hearing provisionally booked for 20 February 2012. Her order was not in fact formally sealed by the court until 28 February 2012. Before that, on 15 February 2012, the judge delivered a written perfected judgment (the February judgment) which reached a different conclusion from her oral judgment, holding that she was unable to determine whether it was the mother or the father who had caused the injuries to section As a result, she proposed to give directions for an assessment of the father as a carer for S at the next hearing. The mother was granted permission to appeal against the February judgment. The Court of Appeal by a majority allowed her appeal, quashed the February judgment and ordered that the findings of the December judgment as to the perpetration of the injuries to S should stand. The father brought an appeal to the Supreme Court with the support of the local authority, the childrens guardian, and their maternal grandparents (with whom T had been residing). The Supreme Court unanimously allows the appeal. It gave its decision to the parties at the conclusion of the oral hearing of the appeal on 21 January 2013 and now provides its written judgment. This is given by Lady Hale, with whom all the Justices agree. The Supreme Court restores the February judgment and the welfare hearing has already proceeded on the basis of the findings in that judgment. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected. In the absence of express power to vary or discharge his own orders, any general power for a judge to review his order once perfected was abolished by the Judicature Acts 1873 and 1875 but the power to reconsider the matter before an order was perfected survived [17 18]. Thus until the December order was sealed, the judge in this case did have the power to change her mind and the question for the appeal court was whether she should have exercised it [19]. The overriding objective in the exercise of this power must be to deal with the case justly. Contrary to the practice previously adopted, it is not reserved for exceptional circumstances and would in every case depend on its particular facts. It would be relevant whether any party has acted upon the decision to his detriment especially in a case where it was expected that they may do so before the order is formally drawn up [27]. In this case, the parties had not irretrievably changed their position as a result of the December judgment. Ss placement had yet to be decided and she remained where she was for the time being. Finality was important but here a final decision had yet to be taken. No judge should be required to decide the future placement of a child upon what he or she believes to be a false basis [29]. The judge had heard very full submissions on the evidence and it was not necessary to invite further submissions before changing her findings in this particular case [30]. If, unlike the facts of this case, the order had already been sealed by the time the judge changed her mind, what would be the position? In care proceedings the fact finding hearing is merely part of the whole process of trying the case [34]. During that process the judge must be able to keep an open mind until the final decision has been made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned and particularly the children if the only way to correct such an error were by an appeal [35]. The Civil Procedure Rules and the Family Procedure Rules make it clear that the courts wide case management powers include the power to vary or revoke previous case management orders, and the issue was whether it was proper to vary an order, rather than whether that order had been sealed [37]. The power had to be exercised judicially and not capriciously and in accordance with the overriding objective [38]. However, if the later development was simply a judicial change of mind, the arguments were finely balanced. Children cases may be different from other civil proceedings because the consequences were so momentous for the child and for the whole family. The court had to get it right for the child [41]. On the other hand, the purpose of the fact finding hearing was to create a platform of established facts which would be undermined, throwing the later hearings into disarray, if a judge could be urged to change his mind and in effect hear an appeal against himself [44]. As the point did not arise in this case, the court declined to express a view [45]. The Supreme Court reflected that the problem which arose in these proceedings would have been avoided by having a full and reasoned judgment from the judge in the first place, which would have identified the reasons for her initial conclusion that the father had been the perpetrator, and from which the father could have appealed. That would have avoided the situation here, where the findings against the father were restored without his having an opportunity for a proper appeal [46].

The issue on this appeal was whether the insurers of a ship were entitled to repudiate liability on the ground that the insured had told a lie in presenting the claim, if the lie proved to be irrelevant to the insurers liability. The vessel DC MERWESTONE was incapacitated by a flood in her engine room. Her main engine was damaged beyond repair. The flood was caused by (i) the crews negligence in failing to close the sea inlet valve in the emergency fire pumps, (ii) damage to the pumps, (iii) the negligence of previous contractors who had failed to seal bulkheads and (iv) defects in the engine room pumping system. The appellant owners presented an insurance claim to the respondent insurers for 3,241,310.60. They told the insurers solicitors that the crew had informed them that the bilge alarm had sounded at noon that day, but could not be investigated because the vessel was rolling in heavy weather. This was a lie told by the owners to strengthen the claim, accelerate payment under the policy, and take the focus off any defects in the vessel for which the owners might have been responsible. The lie was in fact irrelevant to the claim, since the vessels loss was found to have been caused by a peril of the seas. But the judge held that the owners lie was a fraudulent device, which meant the insurers did not have to pay out under the policy. The Court of Appeal agreed. The Supreme Court allows Versloot Dredgings appeal by a majority of 4 to 1, holding that the fraudulent device rule does not apply to collateral lies, which are immaterial to the insureds right to recover. Lord Sumption gives the lead judgment. Lord Clarke, Lord Hughes and Lord Toulson give concurring judgments. Lord Mance gives a dissenting judgment. The common law has long prohibited recovery from an insurer where the insureds claim has been fabricated or dishonestly exaggerated (the fraudulent claims rule). The purpose of the rule is to deter fraud. This appeal concerns the more recent extension of that rule to fraudulent devices, i.e. collateral lies told by the insured to embellish their claim, but which are irrelevant because the claim is justified whether the statement was true or false [1,9]. The fraudulent claims rule does not apply to collateral lies. The dishonest lie is typically immaterial and irrelevant to the honest claim: the insured gains nothing by telling it, and the insurer loses nothing if it meets a liability that it has always had [23 26]. If a collateral lie is to preclude the claim, it must be material. The real test of materiality is that a collateral lie told in the course of making a claim must at least go to the recoverability of the claim on the true facts as found by the court [35 36]. The test is not, as suggested by Mance LJ in The Aegeon [2003] QB 556 and the Court of Appeal and Lord Mance in this case, an attenuated test of materiality requiring that the prospects of the claim should apparently be improved, given the facts known at the time of the lie [18 22, 31]. Lord Clarke concurs, adding that public policy requires that the collateral lie be irrelevant to the insureds claim, and that it would make little sense to support a rule that bars claims involving collateral lies uttered before proceedings are begun, and not afterwards [39 49]. Lord Hughes agrees, pointing out that this extension of the important fraudulent claims rule has been left open by the Insurance Act 2015. The forfeiture of the entire claim is not a proportionate sanction for the teller of a collateral lie, who will suffer in other ways if his lie is discovered [65 104]. Lord Toulson, concurring, concludes that this outcome is just and appropriate [105 110]. In a dissenting judgment, Lord Mance would have dismissed the appeal, upholding the principle set out in The Aegeon, but modifying it so as to require a heightened threshold test of materiality of a significant improvement of the insureds prospects at the time of the lie (rather than retrospectively at the time that the court determines the facts), in order to bar the insureds claim [111 134].

The Appellant is a national of Eritrea. But she was born in Ethiopia on 2 July 1981, where she lived continuously until she departed for the United Kingdom in July 1998. On arrival, she claimed protection as a refugee on the grounds of a fear of persecution in Eritrea. She also claimed that she could not go back to Ethiopia because her life would be in danger there. The Secretary of State granted her temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 (the 1971 Act). Her status has not changed since her arrival in 1998. Her temporary admission has been extended from time to time, and she remains liable to detention under paragraph 16 of Schedule 2 to the 1971 Act. Her claim that she was a refugee was refused by the Secretary of State on 1 November 2004, and she was informed that the Secretary of State proposed to give directions for her removal to Eritrea. The Appellant appealed. By a decision of 1 February 2006, the Asylum and Immigration Tribunal allowed her appeal and held that her fear of persecution in Eritrea on Refugee Convention grounds was well founded. Her status as a refugee was thereby established. The Secretary of State did not appeal against this decision. On 24 August 2006 the Secretary of State served a new notice of decision refusing the Appellants application for leave to enter on the grounds of a fear of persecution in Ethiopia and gave notice of her intention to give directions for the removal of the Appellant to Ethiopia. The Appellant appealed these decisions, but at the same time started judicial review proceedings seeking an order that she be given leave to enter/remain in the UK as a refugee pursuant to the tribunals decision of 1 February 2006 and an order quashing the removal directions to Ethiopia. The appeal has been adjourned pending the outcome of these judicial review proceedings. The judge in the Administrative Court granted the relief sought, but her decision was reversed by the Court of Appeal. The appellant now appeals to this court, arguing that she is entitled to protection under article 32 of the Refugee Convention and cannot therefore be removed to Ethiopia. The Supreme Court unanimously dismisses the appeal. The judgments are given by Lord Hope and Lord Dyson. Article 33 of the 1951 Refugee Convention prohibits any contracting state from expelling or returning (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Every refugee has the protection of that provision. The more generous protection of Article 32, however, is afforded to a more restricted category of persons. Article 32(1) provides that The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. The effect of this is that, once a refugee has been admitted or his presence has been legalised and so long as he retains his status as a refugee, he is entitled to stay indefinitely in the receiving state. He can only forfeit that right by becoming a risk to national security or by disturbing the public order. The question in this case is whether Article 32 applies only to a refugee who has been given the right under domestic law lawfully to stay in the contracting state, or whether the words lawfully present in the territory must be given an extended and autonomous meaning, so that a refugee who has not yet been given a right to remain in the territory is afforded protection under Article 32 that extends beyond the basic obligation under Article 33 not to expel or return to a territory where his life or freedom would be threatened for a Convention reason [1 2]. The first step in this case is to examine the language of Article 32 and to determine, provisionally, whether the words that it uses, taken by themselves, can accommodate the situation in which the Appellant finds herself. The second is to consider whether, if they cannot, the object and purpose of the Convention require the words to be read and given effect more broadly so as to afford the Appellant the protection which she seeks against her removal to Ethiopia [26]. There is some academic support for the Appellants argument that the class of beneficiary referred to in Article 32 should be broadly interpreted, but this approach is not universally accepted, and there is no judicial authority that is directly in point. The argument has to be examined, therefore, as raising an issue of principle [28]. There is no doubt that the Convention should be given a generous and purposive interpretation [30]. However, it must be remembered that the Courts task is to interpret the document to which the contracting parties have committed themselves by their agreement. It has no warrant to give effect to what they might, or in an ideal world would, have agreed [31]. The context in which the word lawfully appears in Article 32 is important. The phrase in which it appears contemplates that the refugee is not merely present in the territory of the contracting state, but that he is there lawfully. It implies that his presence is not just being tolerated, but he has a right to be there [32]. There is no consensus among the commentators that lawful presence should be given an autonomous meaning or what that meaning should be. We must therefore take our guidance from what the framers of the Convention must be taken to have agreed to, as understood by the UN High Commissioner for Refugees [34 & 63]. That is, that the lawfulness of the stay is to be judged against national rules and regulations governing such a stay [33]. In this case, the relevant national rule is section 11(1) of the 1971 Act, which provides that a person who has not otherwise entered the UK shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to the Act. Under that provision, the Appellant is deemed not to have entered this country [34 & 57]. There is no question of the Appellant being expelled from the UK while the statutory processes of appeal remain open to her and have not been brought to an end. But one should be cautious about saying that, just because in practice the Appellant is not at risk of removal for the time being, she is here lawfully within the meaning of Article 32, as that would have far reaching consequences [35]. Furthermore, the same phrase lawfully in their territory is used in Articles 18 and 26 in relation to self employment and free movement [36]. It seems unlikely that the contracting states would have agreed to grant to refugees the freedom to choose their place of residence and to move freely within their territory before they themselves had decided, according to their own domestic laws, whether or not to admit them to the territory in the first place [37 & 57]. For these reasons, the word lawfully in Article 32(1) must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state [40]. This interpretation is consistent with the fundamental principle that the power to admit and expel foreign nationals is a power of the sovereign state [58]. Counsel for the Appellant submitted that, in view of the fact that the UK had recognised her as a refugee, the Appellant was entitled to the assurance that she would not be removed to a third country that was not able to provide her with the full panoply of rights she would get as a refugee under the Convention. Article 32(1) had to be read in that sense [41 42]. However, whether a refugee would have the benefit of the panoply of Convention rights in a territory to which she is expelled cannot have any bearing on the question whether she is lawfully present in the territory from which she is being expelled. This would be to infer a different meaning from the words lawfully in their territory than the contracting states appear to have had in mind when they agreed to them [47 & 64]. There are thus no sound grounds for departing from the view that lawfully in Article 32(1) must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state. This is what the framers of the Convention intended by the use of this word in this context [49].

This appeal is about the burden of proof in actions against a shipowner for loss of or damage to cargo. The six claimants, the appellants, were the owners and holders of the bills of lading for nine separate consignments of bagged Colombian green coffee beans. Those coffee beans were shipped from Colombia between 14 January and 6 April 2012 on various vessels owned by the defendant shipowners, the respondents, to Bremen in Germany. They were stowed in a total of 20 unventilated 20 foot containers (as specified by the cargo owners for these consignments), transhipped in Panama and discharged at Rotterdam, Hamburg or Bremerhaven for oncarriage to Bremen. The bill of lading for each consignment covered the entire carriage. Bagged coffee beans may be and commonly are carried in either ventilated or unventilated containers. Unventilated containers were specified by the shippers of these cargoes. They are, however, hygroscopic, so that if carried in unventilated containers from warmer to cooler climates, they are likely to emit moisture which condenses against the roof and sides of the containers. To prevent this from causing moisture damage to the cargo, it was common commercial practice in 2012 to line the containers with an absorbent material such as Kraft paper. Each bill of lading was governed by English law and subject to English jurisdiction. They each also incorporated the Hague Rules of 1924 and LCG/FCL (less than full container load/full container load) terms applied. This means that the carrier was contractually responsible for preparing the containers for carriage and loading the bags of coffee into them. On outturn at Bremen, condensation damage to the coffee beans was found in 18 out of the 20 containers. The cargo owners brought a claim against the carriers for breach of their duties as bailees to deliver the cargoes in the condition recorded on the bill of lading and, alternatively, breach of article III, rule 2 of the Hague Rules for failure to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. They alleged negligence by the carriers for failing to use adequate or sufficient Kraft paper. The carriers pleaded inherent vice on the ground that the coffee beans were unable to withstand the ordinary levels of condensation forming on such a voyage. In reply, the cargo owners pleaded that any inherent characteristic only led to damage because of the carriers negligence. The judge, David Donaldson QC, held that there was no legal burden on the carrier to prove that the damage to the cargo was caused without negligence or due to an inherent vice, only a factual presumption of negligent damage. He found that: (i) the evidence did not establish what weight or how many layers of paper were used and (ii) there was no evidence, or generally accepted commercial practice, as to what thickness of paper should be used. The Court of Appeal disturbed the factual findings as to commercial practice and the lack of evidence on the number of layers of lining paper in the containers, dismissing the claim by the cargo owners. The questions on appeal to the Supreme Court were: (i) whether the cargo owners (as claimants) bear the legal burden under article III.2 of the Hague Rules and (ii) how, if at all, is the legal burden altered by the article IV.2(m) inherent vice exception? The Supreme Court unanimously allows the appeal, deciding that the legal burden of disproving negligence rests on the carrier, both for the purpose of article III.2 and article IV.2 of the Hague Rules. Lord Sumption gives the sole judgment, with which all members of the Court agree. The judges factual findings are restored and, given the absence of evidence on the weight of the paper used, the Court decides that the carrier has failed to discharge its legal burden. The Hague Rules must be read against the background of the common law rules on bailment [7]. There are two fundamental principles in the law of bailment: (i) a bailee of goods is only under a limited duty to take reasonable care of the goods, but (ii) the bailee nonetheless bears the legal burden of proving the absence of negligence [8 9]. A contract of carriage governed by the Hague Rules is a contract of bailment for reward, to which the same principles apply, unless excluded by the Rules [11]. The Hague Rules do not exclude them. They are only a complete code on matters which they cover and thus not exhaustive [15]. In particular, they do not deal generally with the burden of proof, which in accordance with ordinary principles of private international law are matters for the law of the forum [15]. As with common law bailment, imposing a duty of care on the carrier by article III.2 of the Hague Rules is consistent with his bearing the burden of disproving negligence [17]. That conclusion is reinforced by the relationship between articles III and IV. Article IV covers negligent acts or omissions of the carrier which would otherwise constitute breaches of article III.2. It would be incoherent for the law to impose the burden of proving the same fact on the carrier under article IV, but on the cargo owner under article III.2 [18]. As to article IV, it is well established that the exceptions cannot be relied upon if they were caused to operate by the negligence of the carrier [28, 37]. The carrier must prove facts which show not only that an excepted peril existed, but that it was causative of the damage [37]. This means that the general rule is that the carrier bears the burden of proving that the exception was not caused to operate by the carriers negligence [33, 37]. The Supreme Court considers that The GLENDARROCH [1894] P 226 (CA) is no longer good law [31 33]. In the case of the exception in article IV.2(m) for inherent vice, the test is whether the cargo was fit to withstand the ordinary incidents of the specified service, and its application can be decided only by reference to some assumed standard of care [39]. The mere propensity of the cargo to emit moisture is not inherent vice if reasonable care in lining the containers would have resulted in the cargo being discharged undamaged [39]. The Supreme Court considers that the Court of Appeal was not justified in overturning the judges two material factual findings, since it was not shown that the judge was plainly wrong [40 42].

Capita Insurance Services Limited (Capita) entered into an agreement (the SPA) with the respondent for the sale and purchase of the entire issued share capital of Sureterm Direct Limited (the Company), a company which primarily offers motor insurance for classic cars. Shortly after Capitas purchase of the Companys share capital, employees of the Company raised concerns about the Companys sale processes. A Company review revealed that in many cases the Companys telephone operators had misled customers to make a sale. Capita and the Company informed the Financial Services Authority (FSA) of the findings. Capital and the Company agreed to to pay compensation to customers affected by the mis selling. Clause 7.11 of the SPA was an indemnity clause. It provided the Sellers undertake to pay to the Buyer an amount equal to the amount which would be required to indemnify the Buyer [] against all actions, proceedings, losses, claims, damages, costs, charges, expenses and liabilities suffered or incurred, and all fines, compensation or remedial action or payments imposed on or required to be made by the Company following and arising out of claims or complaints registered with the FSA, the Financial Services Ombudsman or any other Authority against the Company, the Sellers or any Relevant Person and which relate to the period prior to the Completion Date pertaining to any mis selling or suspected mis selling of any insurance or insurance related product or service. Capita brought a claim against the respondent under clause 7.11 alleging that it suffered loss as a result of the mis selling of insurance products in the period before the completion of the sale. The respondent claimed that the circumstances fell outside the scope of clause 7.11 as the requirement to compensate which had arisen was not as a result of a claim by the Companys customers or a complaint by those customers to the FSA or another public authority. The High Court held that clause 7.11 required the respondent to indemnify Capita even if there had been no claim or complaint. The Court of Appeal disagreed. It declared that the indemnity under clause 7.11 was confined to loss arising out of a claim or complaint. Capita appeals against the Court of Appeals order, arguing that it had fallen into error because it had been influenced by the respondents submission that the decision of the Supreme Court in Arnold v Britton [2015] AC 1619 had rowed back from the guidance on contractual interpretation which the Supreme Court gave in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900. Capita argued that this had caused the Court of Appeal to place too much emphasis on the words of the SPA and to give insufficient weight to the factual matrix. Capita submitted that clause 7.11 should be construed so that only the fines, compensation or remedial action or payments imposed on the Company had to arise out of complaints made to the FSA against the Company. The Supreme Court unanimously dismisses Capitas appeal. Lord Hodge gives the lead judgment, with which the other Justices agree. Contractual Interpretation The court must ascertain the objective meaning of the contractual language. It must consider the contract as a whole and, depending on the nature, formality and quality of its drafting, give more or less weight to elements of the wider context in reaching its view as to that objective meaning [10]. Where there are rival meanings, the court can reach a view as to which construction is more consistent with business common sense. However, in striking a balance between the indications given by the language and the practical implications of competing constructions, the court must consider the quality of the drafting of the clause. It must be alive to the possibility that one side may have agreed something which in hindsight did not serve his interest, or that a provision may be a negotiated compromise [11]. It does not matter whether the detailed analysis commences with the factual background and the practical implications of rival constructions or with an examination of the contractual language, so long as the court balances the indications given by each [12]. Textualism and contextualism are not conflicting paradigms in a battle for the exclusive occupation of the field of contractual interpretation [13]. On the approach to contractual interpretation, Rainy Sky and Arnold were saying the same thing [14]. Clause 7.11 The Court of Appeal was correct on the meaning of clause 7.11 [25]. Careful examination of the contractual language identifies the circumstances which trigger the clause [42]. Capitas suggested construction is unlikely for two reasons. Firstly, the suggestion that only the fines, compensation or remedial action or payments imposed on the Company had to arise out of complaints made to the FSA against the Company would not restrict the scope of the warranty in any way. The source of loss and damage in the rest of the clause would remain unlimited. Secondly, it would have the effect that the clause would fail to specify against whom the relevant actions, proceedings and claims in the remainder of the clause could be made. There must be a limit on who such persons could be as it would be absurd for Capita to have a claim against the Sellers for indemnity resulting from any mis selling on its part before the Completion Date [33 35]. The contractual context is also significant in this case. The mis selling which clause 7.11 addresses is also covered by the Schedule 4 warranties, which concern compliance and regulatory matters. The scope of clause 7.11, breach of which gives rise to a liability unlimited in time, must be assessed in the context of the detailed and time limited warranties in Schedule 4 [27]. Capita had two years after completing the purchase to make a claim under Schedule 4. That was not an unreasonable time scale. It is not contrary to business common sense for the parties to agree wide ranging warranties, which are subject to a time limit, and to agree a further indemnity, which is not subject to any such limit but is triggered only in limited circumstances [40]. The SPA may have become a bad bargain from Capitas standpoint, as it appears it did not notify the sellers of a warranty claim within two years of Completion. But it is not the function of the court to improve their bargain [41].

Land that has been used by the inhabitants of a locality for sports and pastimes as of right for at least 20 years may be registered as a town or village green, pursuant to the Commons Registration Act 1965 (the Act). If the registration is wrongly made, an application can be made under section 14(b) for the register to be rectified. The issue in these appeals is the effect of a lapse of time on an application for rectification. The first appeal concerns land known as Clayton Fields in Huddersfield. Planning permissions dating back to the 1960s had been granted for housing development on the land, and it remained designated for such development in local plans. No building had however occurred by 1996, when an application by the Clayton Fields Action Group (the Action Group) was successfully made to register the land as a village green. The then landowners sold the land to the respondent (Paddico) in 2005, and in 2010 Paddico applied for rectification of the register. The application was granted by Vos J in the High Court, who held that the land had been wrongly registered as it had not been used by inhabitants from a single locality, and it was just to rectify the register, notwithstanding the long delay, as little prejudice (harm or detriment) had been demonstrated by the residents. The Court of Appeal agreed with the judge that the land had been wrongly registered but, by a majority, allowed the Action Groups appeal on the ground that the delay in seeking rectification made it unjust to rectify. In the second appeal, the Society for the Protection of Markham and Little Francis (the Society) successfully applied to register an area of 46 acres of open land in Weymouth as a village green in June 2001. The land was sold to the respondent (Betterment) in May 2005, who applied to rectify the register in December 2005. The application was granted in the High Court. Morgan J found that the registration should not have been made, as the use of the land had not been as of right, and that it was just to rectify the register as the inhabitants had been enjoying rights which they should never have had. His order was upheld by the Court of Appeal. Paddico and the Society appealed to the Supreme Court on the sole issue of the relevance of the lapse of time before making an application to the question of whether it was just to rectify the register. The Supreme Court unanimously allows Paddicos appeal, and dismisses that of the Society. It holds that a lapse of time is not immaterial to the justice of applications for rectification but that in these cases there was no evidence before the court to show that significant detriment to others had occurred as a result. Lady Hale gives the only judgment. Where an application for rectification in respect of land wrongly registered as a village green is made there are many private and public interests in play: those of the landowners who have been severely restricted in the use to which the land can be put; those of the local inhabitants who have been enjoying the amenity of the green; and those of the wider public, which include the protection of the accuracy of public registers, the preservation of public open spaces and the securing of the use of land earmarked for development for that purpose [1]. If there has been a lapse of time before making the application the court must adopt a principled approach to its relevance in circumstances where there is no precise analogy with public law claims (which are subject to short time limits), private law claims subject to limitation periods, or private property claims subject to the equitable doctrine of laches (unconscionable delay) [20]. The starting point is the Act itself, which lays down no limitation period for s 14 applications. S 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants [33]. Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy [34]. Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights [35]. The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had [38]; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register [39]; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development [40]; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondents significant detriment [42]. Applying these principles, the courts below had reached the right decision in the Betterment application, where there was no evidence of detriment [43]. In the Paddico application, the trial judge had correctly found that, although the lapse of time was over 12 years, there was no evidence of specific detriment to the local inhabitants, but injustice to the landowner by being deprived of the right to seek to develop the land, and to the public in the unavailability of the land for such development. The judges order for rectification would be restored [44].

KV, who is a Sri Lankan national of Tamil ethnicity, arrived in the UK in February 2011 and claimed asylum. He has scars on his arm and back which he says are the result of torture, but the Home Secretarys case is that they were self inflicted by proxy (SIBP), that is, by another person at his invitation. KVs account is that although he was not a member of the LTTE (Tamil Tigers), he used to melt gold for them. He says he was detained and tortured by the Sri Lankan government, who sought to extract information about where the gold and other valuables were kept. He alleges that the government applied hot metal rods to his arm while he was conscious, the pain rendered him unconscious, and that while he remained unconscious they applied the rods to his back. He appealed unsuccessfully to the First tier Tribunal (FTT) against the Home Secretarys refusal of his claim for asylum. The Upper Tribunal (the tribunal) reheard his appeal as the FTTs decision had been vitiated by an error of law. The tribunal found various aspects of KVs evidence unconvincing but recognised that if his scarring was indeed caused by torture then there was a real possibility his story was true. Dr Zapata Bravo, a medical expert, advised that the scars were caused by burning with a hot metal rod. Furthermore, the scarring on KVs arm had blurred edges but the scarring on his back had such clearly defined edges that he must have been unconscious while the burns were inflicted. He concluded that his clinical findings were highly consistent with KVs account of torture, and that it was unlikely the scars were SIBP. The tribunal nevertheless dismissed KVs appeal, finding that (i) it was clinically unlikely, given their precise edging, that his scarring could have been inflicted unless he was unconscious; and (ii) that it was clinically unlikely a person could remain unconscious throughout multiple applications of hot metal rods to his arms and back, unless he was anaesthetised . On appeal, the Court of Appeal (CA) held by a majority that the assessment made by the tribunal was legitimately open to it and could not be criticised as perverse or irrational. Furthermore, it was beyond Dr Zapata Bravos remit as an expert medical witness to state his opinion that his findings were highly consistent with KVs account of torture as a whole. Elias LJ dissented. The Supreme Court (Lady Hale, Lord Wilson, Lady Black, Lord Briggs and Lord Kitchin) unanimously allows the appeal and remits KVs appeal against the refusal of asylum to the Upper Tribunal for fresh determination. Lord Wilson gives the only judgment. The 1999 Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Istanbul Protocol, guides medical experts to indicate for each lesion the degree of consistency between it and the cause given by the patient, on a scale from not consistent to diagnostic of. The Istanbul Protocol provides that ultimately, it is the overall evaluation of all lesions, and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story. Thus, in concluding that his clinical findings were highly consistent with KVs account, Dr Zapata Bravo framed his conclusion in accordance with the Istanbul Protocol [15] [17]. In the Supreme Court, the Home Secretary felt unable to defend the CAs observations that Dr Zapata Bravo had gone beyond his remit. In their difficult task of analysing whether scars are the result of torture, decision makers can legitimately receive assistance from medical experts who feel able to offer an opinion about the consistency of their findings with the asylum seekers account about the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained. The CAs suggestion that the references in the Istanbul Protocol to the trauma described relate only to the mechanism by which injury is said to have been caused is too narrow a construction of the word trauma [20] [21]. On the other hand, unless an expert finds that the trauma described is either not consistent with or diagnostic of the alleged torture, it would be beyond his or her remit to state that he or she believed the appellant. The conclusion about credibility always rests with the decision maker following a survey of all the evidence [25]. This approach is consistent with that of the Court of Appeal in a previous case of alleged torture, and that of the European Court of Human Rights [22] [23]. An expert investigating an allegation of torture should recognise the Istanbul Protocol as equally authoritative to the relevant Practice Direction on expert evidence in immigration and asylum cases at the FTT and the tribunal [24]. As for the decision of the tribunal, Elias LJ in his dissenting judgment had noted various problems with the tribunals reasons for rejecting KVs account of torture [26]. In particular, the tribunals summary of the doctors evidence lacked apparent awareness that the scarring with precise edging was only on KVs back, and addressed a hypothesis, not advanced by the doctor or KV, that KV was unconscious while the hot metal rods were applied to his arms as well as to his back [28]. Given KVs serious lack of credibility in several areas, the tribunal was correct to address the possibility of wounding SIPB. However, when the tribunal concluded that there were only two real possibilities either that KV had been tortured or that the wounding was SIBP and when it rejected the former, it failed to take into account the fact that self infliction of wounds is inherently unlikely. There is evidence of extensive torture by state forces in Sri Lanka at the relevant time. By contrast, evidence of wounding SIBP on the part of asylum seekers is almost non existent. It is an extreme measure for a person to decide to cause himself deep injury and severe pain. Moreover, if KVs wounding was SIBP, the wounds on his back could only have been inflicted under anaesthetic so he would have needed the assistance of someone with medical expertise. The Supreme Court approves Elias LJs view that very considerable weight should be given to the fact that injuries which are SIBP are likely to be extremely rare [31] [35].

The appellants received indeterminate prison sentences comprising (a) a fixed tariff period; and (b) an indeterminate post tariff period. Post tariff detention was to continue until the appellants satisfied the Parole Board that that they were no longer a danger to the public. The appellants, relying upon the decision of the European Court of Human Rights (ECtHR) in James v United Kingdom (2012) 56 EHRR 399, claimed that their post tariff detention was unlawful because the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release [1]. In James v United Kingdom, the ECtHR found that a failure properly to progress prisoners towards post tariff release breached their article 5(1) rights to liberty under the European Convention on Human Rights and made their continued detention unlawful [1]. The appellants claimed that the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release: (1) Haney, relying on articles 5 and 14, claimed that he had been transferred to open prison conditions too close to the expiry of his tariff period to enable his immediate release. (2) Kaiyam, Massey and Robinson, relying on article 5, claimed that they had not been able to commence particular rehabilitative treatment programmes within a reasonable time of their tariff period expiring. The Supreme Court (a) unanimously allows Haney and Masseys article 5 appeal, awarding Haney damages of 500 and awarding Massey damages of 600; (b) unanimously dismisses Haneys article 14 appeal and Kaiyams article 5 appeal; and (c) dismisses the article 5 appeal in the case of Robinson by a majority of 4 1 (Lord Mance dissenting). Lord Mance and Lord Hughes give the unanimous judgment in the appeals of Haney, Kaiyam and Massey. Lord Hughes (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree) gives a separate lead judgment in the Robinson appeal. Lord Mance delivers a dissenting judgment. Haney, Kaiyam and Massey Lord Mance and Lord Hughes hold that: (1) The Supreme Court is not bound to follow the decision of the ECtHR in James v United Kingdom. The ECtHRs reasoning that a failure properly to progress prisoners towards post tariff release amounted to a breach of their article 5(1) right to liberty would not be followed. The express wording of article 5(1) or 5(4) did not create any relevant duty to provide prisoners with a reasonable opportunity to progress their rehabilitation and release [18 23], [30 37]. (2) However, the overall scheme of article 5 did impose an implied ancillary duty on the Secretary of State to facilitate prisoners rehabilitation and release. Breach of that duty would not affect the lawfulness of the detention, but would entitle prisoners to damages [38 39]. (3) In respect of the appellants in the present case: (a) Haneys delay in being transferred to open prison conditions had deprived him, contrary to article 5, of a reasonable opportunity to demonstrate that he was no longer a danger to the public, an opportunity which the Secretary of State himself had said that he should have [49 50]. However, there had been no breach of article 14 in discriminating between pre and post tariff prisoners [53 54]. (b) Kaiyams delay in being able to commence various rehabilitative treatment programmes did not breach his article 5 rights. He had been provided with a reasonable opportunity to demonstrate that he was no longer a risk to the public through courses on enhanced thinking, drug awareness and victim awareness but his responses to those programmes had been poor [59 61]. (c) Masseys delay in being able to commence an extended sexual offenders treatment programme until nearly three years after the expiry of his tariff period (and after the Secretary of State had provided for a timetable which was not fulfilled) had deprived him of the reasonable opportunity to demonstrate that he was no longer a danger, in breach of article 5 [68 69]. Robinson Lord Hughes holds that Robinsons delay in being able to commence an extended sexual offenders treatment programme until nearly nine months after the expiry of his tariff period did not breach his article 5 rights. The question was not whether the appellant had been deprived of access to a particular course, but whether he had been given a reasonable opportunity to demonstrate that he was no longer a danger to the public [85], [89 92]. Lord Mance (dissenting) considers that article 5 required that Robinson be given a reasonable degree of access to the extended sexual offenders treatment programme, which he had not been given in the circumstances of the present case [99], [109 111].

This appeal concerns the extent to which courts can rely on information which, in the public interest, cannot be disclosed to a person affected by a search and seizure warrant. In this case, search and seizure warrants were issued under s.8 of the Police and Criminal Evidence Act 1984 (PACE) by the St. Albans Magistrates Court in the absence of the Appellant (ex parte) on 16 June 2014, and executed on 26 June 2014. The Appellant was provided with a redacted version of the written application for the warrants on 16 September 2014. He applied for disclosure of the unredacted materials which was refused on grounds of public interest immunity (PII) on 25 September 2014. On 26 September 2014 the Appellant sought return of the material seized by a judicial review claim on the basis that the warrants, entries, searches and seizures were unlawful. By a consent order signed on 27 March and sealed on 6 May 2015 the Second Respondent agreed that the warrants should be quashed. Prior to consenting, on 23 March 2015, the Second Respondent made a protective application under s.59 of the Criminal Justice and Police Act 2001 (CJPA) for continued retention of the seized materials. That application was granted on 11 June 2015. The Appellant sought a further judicial review of that decision. This was dismissed by the Divisional Court which held that it was open to a magistrate issuing a search and seizure warrant and a court deciding an application under s.59 of CJPA to consider material which was withheld from disclosure on PII grounds. The Supreme Court addressed five issues on appeal: (i) how far a Magistrates Court, on an ex parte application for a search and seizure warrant under ss.8 and 15(3) of PACE, can rely on information which in the public interest cannot be disclosed to the subject of the warrant; (ii) whether in proceedings for judicial review of the legality of a search warrant, issued ex parte under sections 8 and 15(3) of PACE (a) it is permissible for the High Court to have regard to evidence upon which the warrant was issued which is not disclosed to the subject of the warrant and (b) whether, where a Magistrates Court is permitted to consider evidence not disclosable to the subject of the warrant, but the High Court is not, it follows that the warrant must be quashed if the disclosable material is insufficient on its own to justify the warrant; (iii) whether there is jurisdiction in a Crown Court to rely on evidence not disclosable to the subject of the warrant in an application made in the presence of both parties (inter partes) to retain unlawfully seized material under s.59 of CJPA; (iv) whether in proceedings for judicial review of an order made inter partes for retention of unlawfully seized material under s.59 of CJPA it is permissible for the High Court to have regard to evidence (upon which the warrant was issued) which is not disclosed to the subject of the warrant; and (v) whether the principles concerning irreducible minimum disclosure apply to proceedings concerning search warrants. The Supreme Court unanimously dismisses the appeal. Lord Mance writes the judgment of the court. The background to the appeal is that no express Parliamentary authorisation exists for the operation of a closed material procedure in any of the contexts outlined in the issues [11]. Under ss.8 and 15 of PACE premises, not a person, is the subject of a warrant [12]. Any analysis should start from the initial application for a warrant, rather than the end position of the application for judicial review but any conclusions reached about earlier stages will be reviewed in light of the analysis of later stages [14]. Issue (i) The statutory scheme of ss.8 and 15 of PACE permits a Magistrates Court in an ex parte application for a search and seizure warrant to have regard to material which cannot on public interest grounds be disclosed to a person affected by the warrant or order, even where this material is decisive for the legitimacy of the warrant [22, 37]. The statutory scheme of ss.8 and 15 of PACE is intended to be ex parte. It is a process designed to be operated speedily and simply on the basis of information provided by a constable satisfying a magistrate that there are reasonable grounds for believing the matters set out in s.8(1) of PACE. There is nothing in the statutory scheme which expressly restricts the information on which the magistrate may act [27]. The statutory procedure under s.8 and the Criminal Procedure Rules also provide protections to persons affected by a warrant and the Rules themselves contemplate that the magistrate or Crown Court will see and rely on information not disclosable for PII reasons [25 27, 34]. Requiring the police in these cases to refrain from seeking a warrant would limit important sources of information and the efficacy of police investigations [27]. A statutory ex parte procedure of this nature to secure evidence on premises is not within the general prohibition on closed procedures without express statutory authorisation recognised in Al Rawi v Security Service [2012] 1 AC 531. Issue (iii) The Crown Court can on an inter partes application under s.59(7) of CJPA operate a closed material procedure on PII grounds [43]. The Crown Court is required to put itself in the shoes of a hypothetical Magistrates Court being asked, immediately after the return of the property, to issue a fresh warrant with a view to seizure of that property [40]. In view of the answer to issue (i), that Magistrates Court is entitled in an ex parte application to have regard to information which cannot be disclosed for PII reasons [40]. Parliament must have intended PACE and CJPA to operate coherently and contemplated the Crown Court being able to operate a closed material procedure under s.59 [41]. An analogy is drawn with Bank Mellat v HM Treasury (No 2) [2014] AC 700 where there was no express provision enabling the Supreme Court to operate a closed material procedure on appeal, but without such a power an appeal to it against a wholly or partially closed judgment could not be effective [42]. Issues (ii) and (iv) are considered together as they raise essentially the same point The High Court can conduct a closed material procedure on judicial review of a magistrates order for a warrant under s.8 of PACE or a magistrates order for disclosure or a Crown Courts order under s.59 of CJPA [59]. The reference to judicial review in Al Rawi, was not directed to this situation [59]. An alternative analysis whereby, in the absence of a closed material procedure, a court must presume that a public authority has acted properly, depriving judicial review of any real teeth, is unacceptable [46 52]. Although judicial review and an appeal are not precisely equivalent, many of the considerations identified in Bank Mellat as favouring a closed material procedure in the context of an appeal also militate in favour of a similar result in the context of judicial review [54 57]. It would be unjust and potentially absurd if the High Court on judicial review had to address a case on a different basis from the magistrate or Crown Court or quashed the order and remitted it to the lower court on a basis different from that which the lower court originally adopted. The High Court would also be unable to give effect to the decision which the lower court or tribunal should have reached or to consider an outcome on the same basis as the lower court as may be required under s.31 of the Senior Courts Act 1981 unless it can operate a closed material procedure when necessary [57 58]. Issue (v) Open justice should prevail to the maximum extent possible [61]. However, it cannot be axiomatic that even the gist of the relevant information must be supplied to any person claiming to be affected and seeking to object to the warrant, search or seizure. Each case must be considered in the light of the particular circumstances. In general terms, issue (v) should be answered in the negative [65].

The Appellant challenges the adequacy of the reasons given by the Scottish Ministers (the Ministers) for their decision to approve Fife Councils policies for the future development of St Andrews. She is concerned that, if implemented, those policies will cause irreversible damage to the landscape setting of the town. In the Scottish planning system (as at the relevant time), the overall strategy adopted by a planning authority on which development in a particular area will be based is set out in a structure plan. It is for the Ministers to approve or reject such a plan. Individuals may make objections to the planning authority prior to the plan being submitted to the Ministers, and to the Ministers themselves after submission. Prior to making a decision to approve or reject a plan, the Ministers must consider any objections properly made to them in respect of either the plan as submitted or any material modification that they, the Ministers, propose to make to it. They must also give such a statement as they consider appropriate of the reasons governing their decision to approve, reject or modify a plan. If a structure plan is approved, its strategy is progressed in more detailed, site specific ways in local plans. In January 2003, Fife Council publicised its intention to prepare a structure plan for Fife. It commissioned a report (the Grant Report) from a landscape architect on the capacity of the landscape adjacent to St Andrews to accommodate development. The report identified approximately 25 hectares of land, 20 of which were to the west of St Andrews, on which development could be accommodated without damaging the landscape. It deemed further development inappropriate because of the potential impact on St Andrews landscape. The finalised structure plan specified the fundamental strategic objective as the economic regeneration of Fife. It stated the intention to realise the potential of St Andrews as the economic driver for Fife by expanding the town, predominantly to the west, by building 1200 houses, a science park, a business park and bypass, while balancing that aim with the need to protect its landscape setting and identify a robust green belt boundary. It also stated that the local plan would determine how, where and the extent to which St Andrews should grow. The plan was submitted to the Ministers in June 2006. In December 2008, the Ministers published proposed modifications to the structure plan, which did not materially alter it as it applied to St Andrews. They also published a strategic environmental assessment (SEA), which concluded that expansion of the town would require careful site selection and mitigation in the relevant local plans due to the limited capacity of the landscape to accommodate development, as identified in the Grant Report. The Appellant submitted a letter in January 2009 objecting to the absence of any modification of the strategy that St Andrews should be an economic driver for Fife. She made specific points grouped under various headings in support of that objection, one of which was Landscape Capacity St Andrews. Under that heading, she referred both to a 1998 study which asserted that St Andrews was at its landscape capacity and to the Grant Reports conclusion that there was limited scope for development. In May 2009, the Ministers approved the final plan with modifications, and stated in a letter to Fife Council that they had considered all objections made to them. They published two schedules of reasons which stated reasons for the modifications made and reasons for not making certain modifications respectively. The latter summarised the objections made, including the Appellants, and stated responses to them. One of these was reason 33, which addressed objections to the effect that landscape capacity assessments had indicated that St Andrews was at its landscape capacity. The reason given for not modifying the structure plan on the basis of such objections was that the Grant Report had indicated that some scope for development to the west of St Andrews existed, subject to mitigation. The Appellant challenges the validity of the structure plan on the ground that the Ministers failed in reason 33 to give adequate reasons for rejecting the part of her objection relating to landscape capacity. She asserts that her objection was not that there was no capacity for development, but that the available capacity could not accommodate the scale of the planned development; that referring to the Grant Report therefore did not address her point; and that she was substantially prejudiced by this failure, as it was unclear whether the Ministers had grappled with that point. The Inner House of the Court of Session rejected these arguments. She also appeals in relation to the way in which the Inner House dealt with the expenses of the proceedings. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the judgment of the Court. Although the distinction is not clear cut, a structure plan is concerned with policy and general proposals, rather than with more detailed matters of the kind addressed by local plans. The duty of the Ministers is to give reasons for approving or rejecting a structure plan, not to justify the policies and proposals set out in it, that being the duty of the planning authority at an earlier stage in the process. Further, the adequacy of the reasons given by the Ministers must be considered on the basis that they are addressed to persons familiar with the background and the issues. These factors are relevant to the exercise of discretion allowed to them in giving such a statement of reasons as they consider appropriate [45 46]. The reasons given must be proper, adequate and intelligible, and must deal with the substantive points raised by way of objection. If that test is met, short reasons may suffice, and if a point of objection is not substantive, little or no reasoning may be given [47]. Further, the Ministers duty to give reasons must be assessed with a sense of proportion, so that an unreasonable burden is not imposed on them. Where Ministers receive a plethora of objections, it is reasonable for the Ministers to group them into broad categories according to their general tenor and to respond to them on that basis [48 49]. The assertion that St Andrews was at landscape capacity appeared in terms in the Appellants letter, and reason 33 addressed objections of that general tenor by citing the finding of the Grant Report that there existed some scope for development to the west of St Andrews [49]. The broader point made by the Appellant that the scale of development envisaged in the structure plan would damage the landscape setting of the town was addressed by the substance of five of the further reasons given in the schedule. For example, reason 17 explained that how the development was to be organised, having regard to landscape considerations, would be determined through the local plan process. The reasons given, read as a whole, provided an intelligible explanation to a well informed reader such as the Appellant as to why the Ministers were not persuaded by her objections [50 51]. Further, there was no flaw in the Ministers reasoning by which the Appellant was prejudiced. The content of the Ministers SEA and schedule of reasons clearly showed that the Ministers had taken account of the potential impact of the policies and proposals in the structure plan on the landscape [52]. In relation to expenses, the Inner House dealt with them in a way that is not open to further argument in the Supreme Court [56]. The court adds some observations about the types of cases which are appropriately considered by it, and explains why this appeal did not fall into that category [58 63].

The issue in this appeal is the weight to be accorded to an earlier grant of refugee status by the United Nations High Commission for Refugees (UNHCR) to a claimant who applies for asylum t o the United Kingdom. The appellant, referred to as IA, is an Iranian national, born in 1976. He left Iran for Iraq when he was 16 and in 1998 applied for and was granted recognition as a refugee to the UNHCR in Iraqi Kurdistan on the basis that he feared persecution as a member of the Kurdistan Democratic Party of Iran (KDPI). He left Iraq for Turkey in May 2002, presented himself to the UNHCR there and was again recognised as a refugee. No action was taken to send him to a safe country and 3 years later he left Turkey, travelled to the United Kingdom and applied for asylum. The respondent, the Secretary of State for the Home Department, refused his application on 27 September 2007 and on 5 November 2008. IAs account was found not to be credible, partly because important matters which he referred to in his asylum interview had not been included in his original statement, and because of the circumstances in which he produced documents supporting his case after the first refusal. There was also a discrepancy between his account of working with Mr Armandzadeh for the KDPI and that given on his behalf by Mr Armandzadeh. IAs appeal to Immigration Judge Agnew was dismissed. She took the grant of refugee status to IA by the UNHCR as a starting point and as significant, despite the lack of evidence as to the basis and procedures for its grant, and held that clear and substantial grounds were needed to come to a different conclusion. She found those grounds to exist. IA had not established that he was involved with the KDPI or that the Iranian authorities would have any interest in him. IAs appeal to the Extra Division of the Court of Session was also dismissed. IA appealed to the Supreme Court. Before this appeal, the UNHCR disclosed documents relating to the grant of refugee status to him. It supported the consistency of IAs case on a number of points. The Supreme Court unanimously dismisses the appeal. It holds that the national decision maker must pay close attention to a UNHCR grant of refugee status and considerably pause before arriving at a different conclusion, but that the immigration judge had been entitled to reject IAs appeal in this case. It will be open to IA to submit a fresh claim to the Secretary of State based on the new material from the UNHCR. Lord Kerr, with whom the other justices agree, gives the only judgment. The UNHCR has a supervisory responsibility in relation to the 1951 Convention relating to the Status of Refugees. State parties to the Convention are obliged to cooperate with UNHCR in the exercise of its functions but its decisions as to refugee status are not binding on state parties, who have an independent autonomous responsibility under the Convention to determine a persons refugee status on asylum applications [28 29]. The accumulated and unrivalled expertise of the UNHCR and its experience and promotion of procedures of high standard and consistent decision making in the field of refugee status determinations must invest its decisions with considerable authority [44]. The issue was how to translate that respect into a tangible impact on decision making by national authorities; in particular, how to resolve matters relating to the credibility of the asylum applicant. The approach proposed by the UNHCR, who intervened in the appeal, was sensible: a UNHCR determination could be disregarded where reliable information was available to the decision maker which called the credibility of the applicants claim into significant question. The information should be from a source other than the applicants own account, unless his story was so riddled with inconsistency and implausibility as to render it unbelievable [46]. It was difficult to fit the fact of the UNHCR decision into the model of determination of a claim to asylum and its influence had therefore to be expressed in general and consequently imprecise terms [47]. This fact must not be allowed to detract from the influence that it wields. Considerations of comity, legal diplomacy and the need for consistency of approach in international protection of refugees required this. A UNHCR decision would generally have been taken at a more proximate time to the circumstances which caused the claim to be made and with first hand knowledge and insight into those conditions [48]. All these factors required of the national decision maker close attention to the UNHCR decision and considerable pause before arriving at a different conclusion. It was not a presumption, nor did it shift the burden of proof, but substantial countervailing reasons were required to justify a different conclusion [49]. In IAs case, it was clear that the Immigration Judge conducted a careful analysis of the material which led her not to follow the UNHCRs determination. There was external evidence which called into question the credibility of IAs account, which entitled her then to examine his account for any intrinsic untrustworthiness [52 53]. IA was entitled to rely on the new evidence of the interview he gave to the UNHCR in May 2003, for the purpose of assessing the level of influence that the UNHCR decision should have. His case would not however be remitted to the immigration judge, even though it was possible that she might have reached a different view on his credibility had it been available earlier, as the better course was for IA to submit a fresh claim under rule 353 of the Immigration Rules. It seemed likely that the Secretary of State would be satisfied that the new material created a reasonable prospect of success and so accept it as a fresh claim [58 61]. The present appeal was therefore dismissed.

In 2011 the fees charged by universities were increased. The cost of fees and maintenance are generally financed by loans from the Government, which are only repaid when students can afford to do so and at an affordable rate. In order to qualify for a loan under Regulation 4(a) of the Education (Student Support) Regulations 2011 (the Regulations) a student must have been lawfully ordinarily resident in the UK for three years before the day the academic year begins (the lawful residence criterion); and be settled in the UK on that day (the settlement criterion). The effect of the settlement criterion is that all students with limited or discretionary leave to remain in the UK are ineligible for student loans. The Appellant is a Zambian national, now aged 20, who came to this country in 2001 at the age of six. Her mother overstayed and the Appellant was unlawfully present in the country until 2012 when she regularised her immigration status. She presently has discretionary leave to remain in the UK. She will be able to apply for indefinite leave to remain in 2018. She has received her entire education in the UK, obtained good grades and wishes to go to university. She has been unable to take up the university places offered her as she is not eligible for a student loan because of her immigration status. The issue in the appeal is whether either the lawful residence criterion or settlement criterion breaches the Appellants right to education under Article 2 of the First Protocol to the European Convention on Human Rights (A2P1), or unjustifiably discriminates against her in the enjoyment of that right. The High Court found that the blanket exclusion from eligibility for student loans based on the Appellants immigration status was a disproportionate interference with her right of access to education under A2P1 and unjustifiable discrimination linked to national origin contrary to Article 14 ECHR. The Court of Appeal allowed the Secretary of States appeal on the basis that this was an area of national strategic policy related to the distribution of scarce resources and so a broad margin of appreciation should be afforded to government policy. The Appellant appealed to the Supreme Court. The Supreme Court allows the appeal by a majority of 3:2. Lady Hale writes the leading judgment, with which Lord Kerr and Lord Hughes agree. Lord Hughes writes a concurring judgment. Lord Sumption and Lord Reed write a joint dissenting judgment. A2P1 does not oblige a state to provide any particular system of education. However, if the state sets up higher educational institutions it will be under an obligation to provide a right of access to them [23]. The Appellant complains that the denial of access to a student loan prevents her from undertaking higher education in the UK and that she has been discriminated against on the basis of her immigration status, contrary to Article 14 ECHR. Whether considered under A2P1 alone or in conjunction with Article 14 ECHR, the question is whether this discrimination is justified [25 26]. The relevant test is not whether the decision was manifestly without reasonable foundation. As this is a question of the distribution of finite resources, respect must be accorded to the primary decision maker. However, greater deference is not warranted as the Respondent Secretary of State did not address his mind to the educational rights of students with discretionary or limited leave to remain when making these regulations [32]. The Regulations pursue a legitimate aim, namely targeting resources on those students who are likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay [34]. The means chosen to pursue that aim, however, were not rationally connected to it. Although the Appellant does not yet have indefinite leave to remain, her established private life in the UK means that she cannot be removed unless she commits a serious criminal offence [35]. Even if a bright line rule is justified in the particular context, the particular rule chosen has to be rationally connected to the aim and a proportionate way of achieving it. Exclusionary rules, which allow for no discretion to consider unusual cases falling the wrong side of the line but equally deserving, are harder to justify [37]. In this case, a bright line rule which more closely fitted the legitimate aims of the measure could have been chosen. Given the comparatively small numbers involved, it has not been shown that it would be administratively unworkable to provide student loans to at least some of those with discretionary or limited leave to remain [38]. The denial of student loans has a very severe impact upon those it affects [40]. Denying or delaying higher education for these individuals also harms the community and the economy [41]. Therefore, the settlement criterion unjustifiable infringes the Appellants Convention rights [42]. The lawful residence criterion is compatible with the Appellants Convention rights. There are strong public policy reasons for insisting on a period of lawful ordinary residence before a person become entitled to public services. If the requirement were to be relaxed it would involve an intolerable administrative burden. The overall balance of harm involved in a delay of up to three years is of a different order from that resulting from the settlement criterion [45]. The court makes a declaration that the application of the settlement criterion to the Appellant is a breach of her rights under Article 14 ECHR read with A2P1 [49]. In his concurring judgment Lord Hughes argues that all rules are blanket rules and are both inclusionary and exclusionary. Clear rules of this sort are useful [60]. While the settlement criterion is unjustifiably discriminatory, the Secretary of State is not necessarily required to construct a rule which allows for a discretion to consider exceptional cases [68]. Lord Reed and Lord Sumption would have dismissed the appeal. A2P1 does not import a right to public financial support [73]. Given that this is a question of state benefits, the test for justification is manifestly without reasonable foundation [77]. The discriminatory effect of the Regulations is justified as it is legitimate to discriminate between those who do and those who do not have a sufficient connection with the UK [88]. A clear rule such as this can be applied accurately and consistently, without the element of arbitrariness inherent in the discretionary decision of individual cases. It simplifies administration and allows for faster decision making [91]. The court must also accord a measure of discretion to the primary decision maker [93].

The issue in this case is whether the claimants rights under article 6(1) of the European Convention on Human Rights (ECHR) were engaged in a disciplinary hearing that was conducted by X School (the School). The claimant contends that the Schools refusal to allow him legal representation violated his article 6 rights. The Safeguarding Vulnerable Groups Act 2006 (the 2006 Act) and its predecessor legislation requires, inter alia, a school to report the circumstances of dismissals involving findings of sexual misconduct to the Independent Safeguarding Authority (ISA) which maintains a childrens barred list. Those included on the childrens barred list are prohibited from undertaking certain work with children, including teaching. Part 1 of Schedule 3 of the 2006 Act applies to ISAs determinations of whether to include an individual on the childrens barred list. It provides that ISA must include an individual on the childrens barred list if a) ISA is satisfied that the person has engaged in relevant conduct and b) it is appropriate to include the person on the list (para 3(3)). Relevant conduct includes conduct of a sexual nature involving a child (para 4(1)). It also provides that ISA must give an individual facing being placed on the childrens barred list the opportunity to make representations (para 2) and it empowers ISA to require various persons, such as the police, to provide it with information (para 19). In coming to its determination, ISA must make an independent evaluation of the facts. It is not bound by the findings of any prior disciplinary hearing. This is also set out in guidance provided to case workers. If ISA determines to place an individual on the childrens barred list, that individual has a right of appeal to the Upper Tribunal (section 4(1) & (4)). The claimant was a sessional music assistant at the School. On 4 October 2007 he was suspended from his post on the basis of allegations that he had formed an inappropriate relationship with M, a 15 year old boy doing work experience at the School. Disciplinary proceedings were launched by the School. The claimant was advised by his solicitor not to participate in them until the police had completed their investigations. In early February 2008 the Crown Prosecution Service indicated that they did not intend to take any further action. By this time the School had also completed its investigation. The investigation report concluded that there was strong evidence that the allegations were proven. A disciplinary hearing was scheduled to take place on 21 February 2008. In advance of the hearing, the claimant was told that he was entitled to be represented by a trade union representative or work colleague. The claimant was not a member of a trade union and sought to be represented by his solicitors. The School refused. The claimant attended the disciplinary hearing accompanied by his father. He refused to answer questions on the basis that he believed the proceedings to be unfair. The disciplinary panel found that the claimant had formed an inappropriate relationship with M. They held that this constituted gross misconduct which warranted his summary dismissal. In May 2008, the School reported this to the Secretary of State in accordance with the legislation preceding the 2006 Act. The question of whether or not the claimant should be added to the childrens barred list remains pending before ISA. The claimant issued judicial review proceedings on 19 May 2008 seeking a declaration that by reason of the denial of his right to legal representation before the Schools disciplinary hearing, it was in breach of his rights under article 6 ECHR. He succeeded before Mr Stephen Morris QC sitting as a Deputy High Court Judge at first instance ([2009] EWHC 504 (Admin)) whose decision was upheld by the Court of Appeal (Laws, Wilson and Goldring LJJ) ([2010] EWCA Civ 1). The Supreme Court, by a majority, allows the appeal. Article 6(1) does not apply to the disciplinary proceedings in issue. The lead judgment is given by Lord Dyson, with whom Lord Walker agrees. Lords Hope and Brown give separate, but concurring, opinions. Lord Kerr gives a dissenting judgment. Article 6 ECHR applies where there is a determination of . civil rights and obligations. The meaning of determination was considered by the European Court of Human Rights (ECtHR) in Ringeisen v Austria (No 1) (1971) 1 EHRR 455. In that case the ECtHR held that it meant proceedings the result of which is decisive for private rights and obligations. In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, the ECtHR contrasted proceedings which are directly decisive of the right in question, to which article 6 applies, with those which have a tenuous or remote consequence. The ECtHR has repeated this mantra in a series of further cases: [36] [59]. The mantra has been applied to circumstances in which initial proceedings do not themselves determine a civil right but are closely linked to subsequent proceedings which do. The ECtHR takes a pragmatic, context sensitive approach to the question of when such a link is established. The case law demonstrates that the factors it takes into account include: whether the first proceedings are in fact dispositive of the later proceedings; how close the link is between the two proceedings; whether the object of the two proceedings is the same; and whether there are policy reasons for holding that article 6(1) should not apply in the first proceedings. In light of this, the test of substantial influence formulated by Laws LJ in the Court of Appeal below is a useful formulation and is endorsed: [64] [69]. In application to the present facts, it is not disputed that the civil right in question is the claimants right to practise his profession as a teaching assistant and to work with children more generally. This civil right would be directly determined by a decision of ISA to include him on the childrens barred list. Accordingly, article 6(1) ECHR applies to proceedings before ISA. However, it was not the function of the Schools disciplinary proceedings to determine the civil right in issue. Rather, they were only concerned with the claimants employment at the School. Therefore, in and of themselves, the Schools disciplinary proceedings do not engage article 6(1) ECHR. As regards the establishment of a link such that article 6(1) ECHR applies to the disciplinary proceedings, they do not directly determine or exert a substantial influence over the ISA proceedings. Therefore, in combination with the ISA proceedings, the Schools disciplinary proceedings do not engage article 6(1). In particular this is because ISA is required to exercise its own independent judgment both in relation to finding facts and assessing their gravity and significance. The decision by ISA whether to include an individual on the childrens barred list is only taken following an assessment of the full merits of each case. The absence of an oral hearing does not prevent the ISA from making its own findings of fact and forming its own view independent of the view formed by the School [70] [83]; [87] [92]; [97] [101]. Lord Kerr would have dismissed the appeal. In his view, ISA could and indeed should be substantially influenced by the findings of the disciplinary tribunal. The requirement that it reach its own independent view of the facts is not inconsistent with this. The overall process involving the determination of the claimants civil right must be fair. In light of this, it is mistaken to concentrate substantially or exclusively on an individual stage in that process. In this case, the disciplinary proceedings were critical in testing the evidence against the claimant. To recognise his right to be legally represented at that stage is consonant with the proper safeguarding of his article 6 rights: [103] [119].

This is a mothers appeal to the Supreme Court on the ground that her removal from the United Kingdom will constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by article 8 of the European Convention on Human Rights. The over arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this is a more specific question: in what circumstances is it permissible to remove or deport a non citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave? There is no power to remove or deport a person who is a United Kingdom citizen: see Immigration Act 1971, section 3(5) and (6). They have a right of abode in this country, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance: see 1971 Act, sections 1 and 2. The consistent stance of the Secretary of State is that UK citizens are not compulsorily removed from this country. However, if a non citizen parent is compulsorily removed and agrees to take her children with her, the effect is that the children have little or no choice in the matter. There is no machinery for consulting them or giving independent consideration to their views. The mother is a national of Tanzania who arrived in the UK in December 1995. She made three unsuccessful claims for asylum, one in her own identity and two in false identities. In 1997 she formed a relationship with a British citizen. They have two children, now aged 12 and 9, who are both British citizens and have lived here all their lives. The parents separated in 2005 but the father continues to see the children regularly. After the fathers diagnosis with HIV in 2007, the mother made further representations to the Secretary of State. These representations were accepted as a fresh claim but were rejected. The mothers appeal was dismissed by the Asylum and Immigration Tribunal and by the Court of Appeal. The Court of Appeal upheld the tribunals finding that the children could reasonably be expected to follow their mother to Tanzania. The Supreme Court unanimously allows the appeal. Lady Hale gives the leading judgment. The best interests of the child broadly means the well being of the child. A consideration of where these best interests lie will involve asking whether it is reasonable to expect the child to live in another country. An important part of discovering the best interests of the child is to discover the childs own views. [29], [34] [37] Although nationality is not a trump card it is of particular importance in assessing the best interests of any child. The children in this case are British not just through the accident of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country. [30] [31] The intrinsic importance of citizenship should not be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults. [32] In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mothers appalling immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. In those circumstances, the Secretary of State was clearly right to concede that there could only be one answer. [33] Lord Hope observed that the fact of British citizenship will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose the benefits and advantages of this citizenship for the rest of their childhood. The fact that the mothers immigration status was precarious when the children were conceived cannot be held against the children in the assessment of whether their best interests are outweighed by the strength of any other considerations. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible. [41], [44] Lord Kerr stated that the fact that a child is a British citizen also has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child may live. [46] [47]

Section 133 of the Criminal Justice Act 1988 (s 133) provides that the Secretary of State for Justice shall pay compensation when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Article 14(6)), which the United Kingdom ratified in May 1976. Article 14(6) also refers to a miscarriage of justice. The principal issue in these appeals was the meaning of this phrase in this context; in particular whether compensation should only be given if someone was subsequently shown conclusively to have been innocent of the offence. The three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. In each case the claim was refused on the ground that the appellant had not shown that a miscarriage of justice had occurred. In Mr Adams case, it was also refused on the ground that he had not shown that his conviction had been reversed by reason of a new or newly discovered fact. Mr Adams was convicted on 18 May 1993 of the murder of Jack Royal. His conviction was referred to the Court of Appeal in 2007 on the ground that incompetent defence representation had deprived him of a fair trial. His representatives had failed to consider unused material provided by the police which would have assisted in undermining the evidence given by the sole prosecution witness. The Court of Appeal found that if this had been done the jury might not have been satisfied of Mr Adams guilt, although he would not inevitably have been acquitted. Mr McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty, and Mr MacDermott that of DC McNulty, on 12 January 1979. The sole evidence was their admissions during interviews with the police. They alleged that these had been made after ill treatment and called other witnesses who claimed to have suffered similar treatment from the same group of police officers. The judge rejected their evidence. He had been told that a prosecution brought against one of these witnesses had not been proceeded with. But he was not told that this was because senior officers in the Department of the Director of Public Prosecutions considered that he had been assaulted by police officers to obtain his confession and that a conviction in another case, based on a confession obtained in similar circumstances and involving one of the same officers, had been quashed. The Court of Appeal in Northern Ireland quashed the convictions of Mr McCartney and Mr MacDermott on 15 February 2007 on the ground that this new evidence left it with a distinct feeling of unease about the safety of their convictions. The Supreme Court unanimously dismisses the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allows the appeals of Mr MacDermott and Mr McCartney. The majority hold that a miscarriage of justice has occurred for the purposes of s 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it. Miscarriage of justice Miscarriage of justice was a phrase capable of a number of different meanings. It was useful to consider four categories of cases in which the Court of Appeal would quash a conviction on the basis of fresh evidence: Where it showed a defendant was innocent of the crime (category 1) Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (category 2) Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (category 3) Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (category 4) [9] The primary object of s133, and of Article 14(6), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime [37]. Category 4 fell outside this purpose as it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilt of the convicted person [38]. Category 3 was also outside s 133 because the miscarriage of justice had to be shown beyond reasonable doubt. Category 3 would include a significant number who had in fact committed the offences, as an inevitable consequence of a system which required guilt to be proved beyond reasonable doubt [42]. Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt. A wider scope was plainly intended at the time of the drafting of Article 14(6). Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for miscarriage of justice in s 133 (in more robust terms than category 2) was as follows: A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it [55]. A miscarriage of justice in a case of that kind would be as great as it would have been if he had in fact been innocent, because in neither case would he have been prosecuted at all [102]. Four justices dissented on this issue. Lord Judge considered that the words beyond reasonable doubt in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]. Lord Brown considered that there was no logical or principled dividing line between categories 2 and 3 [274] and the arguments in favour of an interpretation limited to category 1 were compelling [277]. Lord Rodger agreed with Lord Brown, and Lord Walker agreed with Lord Brown and Lord Judge. Application of s 133 to cases involving a retrial An amendment to s 133 (subsection 5A) which referred to a retrial changed the timetable for a claim for compensation. It did not mean that compensation was payable in every case in which a retrial had been ordered and the defendant then acquitted, as was argued by counsel for the intervener Barry George. The same test was to be applied. The amendment allowed for the possibility that something might emerge in the retrial which would require compensation [104]. New or newly discovered fact Lord Phillips (with whom Lady Hale, Lord Kerr and Lord Clarke agreed) held that the phrase new or newly discovered fact should be interpreted generously in accordance with the effect given to Article 14(6) by legislation in Ireland as including facts the significance of which was not appreciated by the convicted person or his advisers during the trial [60]. Lord Hope disagreed, considering that material disclosed to the defence by the time of the trial could not be said to be new and the focus on the state of mind of the convicted person went too far [107]. Lord Judge (with whom Lords Brown, Rodger and Walker agreed) preferred an approach which coincided with the test for admission of fresh evidence before the Court of Appeal, which required a reasonable explanation for the failure to adduce the evidence at the trial. This had been satisfied by Mr Adams in his case [281]. Disposal of the appeals Mr Adams appeal was unanimously dismissed on the ground that his was a category 3 case and did not fall within s 133. The majority allowed the appeals of Mr McCartney and Mr MacDermott as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based upon it. The minority would have remitted their cases to the Secretary of State for further consideration in the light of the judgment.

The Appellant made an application for leave to remain as a Tier 2 (General) Migrant in the UK. At the time his application was made, it was supported by a valid certificate of sponsorship (CoS) from his employer, Submania Limited (Submania). However, the Home Office revoked Submanias sponsor licence while the application was outstanding. The Home Office did not inform the Appellant and, three months after revoking Submanias licence, rejected his application on the basis that he no longer had a valid CoS from a licensed sponsor and so he had not fulfilled the conditions for the grant of leave. The Appellant sought an administrative review of the decision to reject his application and a 60 day period to enable him to provide a fresh CoS, but the decision was maintained. The Appellant then applied for judicial review in the Upper Tribunal. The Upper Tribunal dismissed his application, and the Court of Appeal dismissed his appeal, the Court of Appeal holding that the Appellants challenge raised an issue of substantive unfairness. The Appellant appealed to the Supreme Court. The Supreme Court allows the appeal. The Court unanimously holds that the Home Secretary breached her procedural duty to act fairly by failing promptly to notify the Appellant of the revocation of his sponsors licence. The majority of the Justices (Lord Kerr, Lady Black, and Lord Briggs) hold that the Home Secretary was not under a further duty to provide a period of time following notification to enable the Appellant to react to the revocation of his sponsors licence. Lord Wilson and Lady Arden concluded that the law did impose this further duty on the Home Secretary. Lord Briggs would have dismissed the appeal despite the Home Secretarys breach of the duty promptly to notify. Issue (i): Did the Home Secretarys failure promptly to notify the Appellant of the revocation of his sponsors licence breach the duty of procedural fairness? The Court unanimously answers this question yes. Lord Kerr and Lady Black (delivering a joint judgment) consider that it is a self evident aspect of that duty for the Home Secretary to ensure that the Appellant had timely notice that, for a wholly unanticipated reason, his application was bound to fail (carrying potentially devastating consequences). They find that this duty is underpinned by the notion that a person such as the Appellant should be afforded as much opportunity as reasonably possible to accommodate and deal with such a decision [107]. Lord Kerr and Lady Black consider that this duty can be characterised as procedural rather than substantive because it is a negative duty: an obligation not to deprive the Appellant of the chance to avoid, or mitigate the effects of, the Home Secretarys adverse decision on his application [108]. The Appellant would ultimately have to be notified that his sponsors licence had been revoked, and so the duty promptly to notify does not create any novel positive obligations [112]. Nor does the fact that the procedural duty may result in the opportunity to avoid the effect of an adverse outcome affect that conclusion [137 140]. Consequently, the duty arose as a matter of procedural fairness. Lord Briggs agrees that the Home Secretarys failure to notify constituted procedural unfairness, but he does not consider that this breach justifies the Court setting aside the Home Secretarys decision. He considers that the Appellants lost opportunity to improve his position resulted from the Home Secretarys voluntary (and probably unconscious) three month delay in dealing with the application and that, because the delay was a mere happenstance and the Home Secretary was not obliged to give the Appellant any such breathing space, this breach ought not to render the decision unlawful [197]. Issue (ii): Was the Home Secretary under a duty to provide a period of time following notification to enable the Appellant to react to the revocation of his sponsors licence? The majority answer this question no. Lord Kerr and Lady Black consider that the duty to act fairly in the circumstances involves a duty not to deprive, not an obligation to create. To require the Home Secretary to grant a grace period following notification would be to impose a positive duty and an extra extension of leave beyond that set out in the legislation or Immigration Rules [108 109]. This would be a substantive duty, falling outside of the bounds of procedural fairness [108; 141]. Lord Briggs agrees that a duty to provide a grace period following notification would be a substantive duty going beyond that set out in the Immigration Rules [164; 187]. He reasons that, if time is sought to change or improve the underlying facts to make them more favourable, the issue is probably substantive [177]. A grant of time to find new sponsored employment so as to qualify for Tier 2 leave to remain is therefore substantive [180]. So too is a grant of time to prepare for an orderly departure from the UK [178]. Furthermore, the ultimate consequence of the Home Secretarys failure to grant a grace period that the Appellant became an overstayeris itself a matter of substance [183]. Lord Briggs also considers that the duty to provide a grace period would be perhaps a rare example of pointlessness [162] and that the principles that underlie procedural fairness have no application to a situation where the decision is inevitable (as was the outcome of the Appellants original application) [158; 162]. Equally, the collateral advantage of being able to take alternative steps as a lawful migrant while being protected from being an overstayer is not one which procedural fairness is designed to protect [164 165]. Consequently, the Home Secretarys failure to provide a grace period was not challengeable under that head of judicial review (nor any other) [187]. In separate judgments, Lady Arden and Lord Wilson disagree with the majority. Lady Arden holds that the duty falls under procedural fairness because establishing a procedural impropriety is a necessary first step [27 28]. The substantive element in the challenge is a consequence of the procedural fairness argument rather than vice versa [32], and this conclusion is supported both by the fact that the Home Secretarys substantive decision is unchallenged [74] and by the fact that the rule in question is unaffected by the determination of procedural unfairness [75]. Lady Arden also considers that this is not a case of pointlessness: if granted a grace period, the Appellant would have a chance (which may only be small) that he may find a new basis for applying for leave to remain [61]. Rather, it is pointless to impose a duty on the Home Secretary to notify the Appellant promptly if that duty is not accompanied by a grace period giving the Appellant a meaningful opportunity to take steps in light of that notification [72]. She also considers that the opportunity to take any such steps ought not to depend serendipitously on the amount of time that happens to pass between notification and rejection [72]. She agrees with the judgment of Lord Wilson [92]. Lord Wilson agrees with Lady Arden. He holds that the duty of fairness at common law can impose positive obligations [203 204] and that a duty to provide a grace period would not be inconsistent either with the statute or the Immigration Rules [205]. He queries how, without departure from ordinary meaning, the Appellants complaint could be described as not being procedural [208]. Furthermore, he finds that a duty of prompt notification would be to give nothing of value to the Appellant unless accompanied by a duty to provide a grace period and that the law should not impose a duty nor confer a right if they are of no value [217]. He finds that the Home Secretary would have been likely to refuse the Appellants application immediately after notification if it were only subject to a duty of prompt notification [221]. Consequently, he considers that only both dutiestaken togetherwould yield the Appellant a reasonable time within which, while not suffering the serious consequences of being an overstayer, he could seek to vary his leave to remain application or seek leave to remain outside the Immigration Rules [222]. He therefore considers that procedural fairness requires both duties to be imposed.

This appeal concerns two parcels of grazing land one mile east of Rochdale, totalling 26.85 acres, formerly owned by the appellant and which were subject to compulsory acquisition under the North West Development Agency (Kingsway Business Park, Rochdale) Compulsory Purchase Order 2002 (the CPO). Responsibility for paying compensation to the appellant rests with the respondent (the authority), and for which the valuation date was 4 January 2006. In 1999 developers published a KBP Development Framework in support of an application for planning permission, which included a master plan. Planning consents linked to the master plan were granted on 19 December 1999, and remained in force at the date when the parcels fell to be valued. The CPO was then made in 2002. The appellant acquired the land (and an additional adjacent parcel) for a total of 1.3m in May 2003 and its objection to the CPO was rejected, chiefly on the grounds that the land was required for the comprehensive development of the KBP scheme. At the time the land came to be valued, the Statutory Development Plan in force comprised the regional guidance (RPG13) which included the Kingsway Business Park as a strategic regional site and the Rochdale Unitary Development Plan (the 1999 UDP). The law on compensation for compulsory acquisition is found in the Land Compensation Act 1961 (the 1961 Act), with the general compensatory principle found in section 5, rule 2. Also relevant to calculating compensation in this appeal are the provisions on disregards of actual or prospective development (section 6 and Schedule 1), and those on planning assumptions (sections 14 16). These provisions operate alongside the Pointe Gourde rule or no scheme rule that compensation is to be assessed disregarding any increase or decrease in value solely attributable to the underlying scheme of the acquiring authority. The appellant made a claim for 2,593,000 compensation on the basis that the land had significant potential value for residential development, independent of the scheme of acquisition. The respondent, meanwhile, argued that the claim should be limited to the existing use value of approximately 50,000. The Upper Tribunal agreed with the appellant in part, awarding compensation of 746,000 on the basis that there would have been a 50/50 chance of planning permission being obtained in the no KBP world. On the authoritys appeal, however, the Court of Appeal did not accept either partys argument, and remitted the issue for determination on an alternative basis that applied the s.6(1) disregard more widely. The Supreme Court unanimously allows the appeal. Lord Carnwath gives the judgment, with which the other Justices agree. The Court of Appeals approach would seem to require disregarding not just the KBP scheme, but also all the policies past and present which supported development on this land [35]. The Upper Tribunal were clearly entitled to regard the underlying policies as potentially relevant to the prospect of development, apart from the KBP scheme. The assessment of their significance in the no KBP world was pre eminently a matter for the tribunal, which properly took account of the pattern of development on the ground and the long history of identification of this land for development. Their approach did not ignore potential policy objections, and disclosed no error of law [36]. The Court of Appeal was, however, correct to reject the submission that the tribunal should have treated the planning status of the land as conclusively fixed by reference to sections 14 16 of the 1961 Act. That the statutory assumptions are not exclusive is confirmed in section 14(3) of the 1961 Act, itself. They work only in favour of a claimant, and do not deprive him of the right to argue for prospective value under other provisions or the general law [37]. It is well established that the application of the Pointe Gourde rule may result in changes to the assumed planning status of the subject land. Further, there is nothing in section 6 to indicate that a more restrictive approach should be applied under the statutory disregards: the tribunal did no more than emphasise the difference between the statutory tests when it stated that the two stages of the analysis should not be elided [39]. It has also long been accepted that application of the general law may produce a result more favourable to a claimant than the statutory assumptions: the Law Commission has pointed to the two Jelson cases as an example of this, where the Pointe Gourde rule permitted a broader view of the matter [40]. It is hoped that the amendments currently before Parliament in the Neighbourhood Planning Bill will achieve their stated aim of clarifying the principles and assumptions for the no scheme world. Overall, the tribunals application of these complex provisions was exemplary; the appeal should be allowed and the award of the tribunal restored [43 44].

The appeal has proceeded on the basis of assumed facts which include the following. Mr Al Sanea held on trust for Saad Investments Co Ltd (SICL) shares to the value of around US$318m in various Saudi Arabian banks. SICL went into liquidation and Mr Akers is one of its Joint Official Liquidators. Six weeks after the liquidation, Mr Al Sanea transferred the shares to Samba Financial Group (Samba) in discharge of personal liabilities he owed to Samba. It is assumed that (i) the trusts are governed by Cayman Islands law and (ii) the law of Saudi Arabia, where the shares are sited (the lex situs), does not recognise the institution of trust or a division between legal and proprietary interests. In these proceedings brought against Samba, SICL and its Joint Official Liquidators contend that the transfers of shares were and are void under section 127 of the Insolvency Act 1986 as a disposition of the companys property made after the commencement of the winding up. The appeal arises out of Sambas application to stay the proceedings on the basis that Saudi Arabia is a more appropriate forum than England, although this ground has evolved into a case that SICLs claim had no prospect of success. Below, and when the matter first came before the Supreme Court, argument focused on whether an equitable proprietary interest can exist in an asset sited in a jurisdiction which knows no such concept. It appears to have been assumed that, if SICL had such an interest, it was disposed of by Mr Al Saneas transfer of title in the shares to Samba. In the Court of Appeal, detailed submissions were made on the Convention on the Law applicable to Trusts and on their Recognition (the Hague Convention), scheduled to the Recognition of Trusts Act 1987. The Court of Appeal held that as Cayman law, unlike Saudi law, recognised the division of the legal and beneficial interests in shares, the trusts were arguably valid. Following the oral hearing before it, the Supreme Court invited and received two sets of supplementary written submissions focusing more precisely on the ultimately critical question of whether there was any disposition within section 127 even if (i) SICL had equitable interests in the shares and/or (ii) SICL only enjoyed personal rights in respect of the shares. The Supreme Court allows Sambas appeal. The transfer to Samba did not dispose of any rights belonging to SICL within the meaning of section 127. Lord Mance gives the lead judgment, with which Lord Neuberger, Lord Sumption, Lord Collins and Lord Toulson agree. Lord Neuberger, Lord Sumption and Lord Collins also give separate concurring judgments. At common law, the nature of the interest intended to be created by a trust depends on the law governing the trust [17 18]. The lex situs may treat a disposition of shares to a third party as overriding any interest of the beneficiary in the shares. That does not mean, however, that a common law trust cannot or will not exist in respect of those shares [19 21]. A trust may be created, exist and be enforced in respect of assets located in a jurisdiction such as Saudi Arabia, the law of which does not recognise trusts in any form [22 34]. Nothing in the Hague Convention alters this conclusion, unsurprisingly given that one of its aims was to provide for the recognition of trusts in jurisdictions which did not themselves know the institution [39 40]. Lord Collins (with whom Lord Sumption agrees [91]) considers that the case does not raise the interesting and difficult questions on the Hague Convention which were argued at each stage of the proceedings [93 102]. The definition of property in section 436 of the Insolvency Act 1986 is plainly wide enough to embrace both equitable proprietary and purely personal interests [42 43; 60; 87]. The question of whether there was any disposition of these interests is more difficult. It can be argued that the concept extends to misappropriation of assets subject to a trust [45 50] or destruction or extinction of an equitable interest in such assets, but this is not in context the natural meaning [55]. Where a trust exists, the legal and beneficial interests are distinct, and what affects the former does not necessarily affect the latter. Where an asset is held on trust, the legal title remains capable of transfer to a third party, although this undoubted disposition may be in breach of trust. But the trust rights, including the right to have the legal title held and applied in accordance with the terms of the trust, remain. They are not disposed of and continue to be capable of enforcement. If the trust rights are overridden (or, as Lord Neuberger puts it, they are lost or disappear [62]), this is not attributable to the transfer of the legal title. It is because they were protected rights that were always limited and in certain circumstances capable of being overridden by virtue of a rule of law governing equitable rights, protecting in particular bona fide third party purchasers for value (equitys darling) [51 52; 83; 89]. Section 127 enables companies in winding up to recover assets legally owned by them by treating the disposition as void (subject to the courts power to validate the disposition). It is neither aimed at, nor apt to cover, the present situation [53; 56]. Since on the assumed facts Samba gave value in the form of the discharge of Mr Al Saneas debt, its liability to restore the shares depends not on section 127, but on whether it is accountable on the basis of notice [54; 56; 88]. Lord Neuberger considers that the word disposition may in some circumstances embrace destruction or extinction of an interest, notably where there has been a surrender of a lease, contractual rights or a life interest [66 69]. There may also be reasons of policy for concluding that section 127 applies equally in respect of property held for a company by a third party as it does to property which it holds in its own name [70]. However, there are important differences between a surrender and the loss of a beneficial interest on a transfer of the legal estate to a bona fide purchaser for value without notice which would make it unfair for section 127 to apply in the latter as well as former case so as to render the transaction void. Unlike a person taking a surrender of a lease or contractual rights from a company, a bona fide purchaser for value without notice would, by definition, be unaware of both the company (or at least that it had an equitable interest) and of the equitable interest [74 76]. Lord Sumption notes that the law relating to constructive trusts has achieved a high level of development. Its coherence would not be assisted by giving the term disposition a meaning inconsistent with basic principles governing the creation and recognition of equitable interests, founded on a very different balance of the relevant interests [90]. The parties have 21 days to make submissions on the consequences of these conclusions, in particular as to whether the proceedings should be stayed or struck out or remitted to the High Court with a view to possible amendment to enable them to proceed on an alternative basis [57; 92; 103].

This appeal concerns which types of costs incurred in the salvage of a damaged shipping vessel qualify when assessing whether such a vessel is a constructive total loss or not for insurance purposes. Section 60(2)(ii) of the Marine Insurance Act 1906 (the Act) provides that in the case of damage to a shipping vessel, there is a constructive total loss where she is so damaged by a peril insured against that the cost of repairing the damage would exceed the value of the ship when repaired. On 23 August 2012, the Renos, was seriously damaged by an engine room fire while on a voyage in the Red Sea. On the same day, the owners appointed salvors under Lloyds Open Form 2011 (No Cure No Pay). The vessel was towed by the salvors to Adabiya, where her cargo was discharged, and then to Suez, where the salvage services ended. A tug was hired to stand by the vessel while she was at Suez and for onward towing. These proceedings were brought in support of a claim against the hull underwriters for a constructive total loss. Notice of abandonment was served on the insurers on 1 February 2013, while the vessel was at Suez. The Renos was insured at an agreed value of US$12m under a hull and machinery policy subscribed by the appellants (among others). The lead hull and machinery insurer was the first appellant, the Swedish Club. In addition, the Swedish Club alone subscribed an Increased Value Policy against the same risks covering certain charges so far as they exceeded those recoverable under the hull and machinery policy, up to a maximum of US$3m. In the High Court, it was agreed by both sides that there had been an insured loss. The only issue was the amount payable. The insurers acknowledged liability for a partial loss, but did not accept the notice of abandonment or a constructive total loss. Mr Justice Knowles (Knowles J) held that there was a constructive total loss. The Court of Appeal agreed with both his conclusions and his reasons. The insurers now appeal to the Supreme Court. Issue (1) is whether the cost of repairing the damage to the vessel under section 60(2)(ii) includes expenditure already incurred before the service of notice of abandonment. Issue (2) is whether the relevant costs include charges payable to the salvors under the SCOPIC (Special Compensation, Protection and Indemnity) clause of Lloyds Open Form. On issue (1), the insurers argue that any pre notice of abandonment expenditure is excluded. If correct, they would be liable for a partial loss only. As for issue (2), the SCOPIC charges were all incurred before the service of notice of abandonment. If the insurers are right on issue (1), these costs will be disregarded. The judge found that, if so, the repair costs might make the vessel a constructive total loss. The shipowners succeeded on both issues below. The Supreme Court unanimously allows the appeal in part (dismissing it on issue (1), but allowing it on issue (2)). Knowles Js order is set aside and the matter is remitted to him to determine whether there was a constructive total loss. Lord Sumption gives the lead judgment, with which all the Justices agree. Issue (1): Expenditure incurred before notice of abandonment The Supreme Court, agreeing with the courts below, does not accept that expenditure incurred before the service of the notice of abandonment falls outside the scope of costs under section 60(2)(ii). [19] First, as a matter of language, the references in section 60 to expenditure which would be incurred reflect the hypothetical character of the whole exercise and not the chronology of the expenditure [8]. Secondly, as a general rule, the loss under a hull and machinery policy occurs at the time of the casualty and not when the measure of indemnity is ascertained [10]. This rule applies even if the loss developed after the time of the casualty, unless it developed as a result of a second casualty breaking the chain of causation [10]. Constructive total loss is a legal device for determining the measure of indemnity [11]. It is a partial loss which is financially equivalent to a total loss and may be treated as either by the insured [11]. Whether there has been a constructive total loss depends on the objective facts [12]. It follows from this objective approach and the fact that the loss is suffered at the time of the casualty, that the damage referred to in section 60(2)(ii) is in principle the entire damage arising from the casualty from the moment that it happens [13]. The measure of that damage is its effect on the depreciation of the vessel, represented by the entire cost of recovering and repairing it [13]. Thus, it cannot make any difference when that cost was incurred [13]. Service of a notice of abandonment is thus irrelevant [14 18]. Applying this approach, the cost of repairing the damage included all the reasonable costs of salving and safeguarding the Renos from the time of the casualty onwards, together with the prospective cost of repairing her. These costs were not reduced by being incurred before the notice of abandonment and are therefore to be taken into account for the purposes of section 60(2)(ii) of the Act. [19] Issue (2): SCOPIC charges The SCOPIC clause is supplementary to the Lloyds Open Form. The law on salvage was modified by the International Salvage Convention 1989 (the Convention) [21]. Article 8(1)(b) provides that in performing salvage services, a salvor had a duty to exercise due care to prevent or minimise damage to the environment [21]. Article 14(1) entitles the salvors to special compensation from the shipowner amounting to the expenses from performing the article 8(1)(b) duty [21]. Clauses 5 and 6 are the critical parts of the SCOPIC clause. Clause 5 provides for the assessment of the salvors remuneration for the totality of the services provided, including for environmental protection [22]. Clause 6 reflects the fact that such remuneration is intended to avoid environmental damage which would be liability of the shipowner [22]. It is well settled that the cost of repairing the damage in section 60(2)(ii) includes some costs not spent directly on actual reinstatement [24]. The common feature of all the cases in which the cost of preliminary steps have been included is that their objective purpose was to enable the ship to be repaired [25]. That will generally be true of salvage charges, the cost of temporary repairs, towage and other steps plainly preliminary to permanent repair [25]. However, the objective purpose of SCOPIC charges is different. They protect an entirely distinct interest of the shipowner, namely potential liability for environmental pollution [25]. It is irrelevant that a prudent uninsured owner might contract with the same contractors for both purposes [25 26]. It follows that the courts below erred in holding that SCOPIC charges are part of the cost of repairing the damage in section 60(2)(ii) of the Act. [27 28]

The Appellants (Mr and Mrs H) are both British citizens. The United States has requested their extradition under the Extradition Act 2003 to face trial in Arizona on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. The Appellants argue that it would be incompatible with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights for them to be extradited. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is one year old. Mr H is the father of the four younger children. The Appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. Mr H is also the father of two other children, of different mothers. Allegations of sexual abuse of the elder daughter by Mr H when they were living in Arkansas led to her being taken into care for a period of time. Mr H moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. In 2004, after Mr H had moved to England and formed a relationship with Mrs H (then Miss S), the High Court in Middlesbrough found that Mr H had indeed sexually abused his eldest daughter on a number of occasions in Arkansas and Texas in 1993 and 1994. It made an order against Mr H that he was to have no contact whatsoever with Miss Ss three elder children. This order was ignored entirely by both Mr H and Miss section The extradition proceedings first came before the sheriff on 31 January 2007 and the Appellants were remanded in custody. They were both released on bail after seven months in custody on 31 August 2007. Mr H was returned to custody on 26 April 2011 after failing to attend a court hearing. Mrs H was again remanded in custody on 29 July 2011 when the Appellants appeals were refused. She was released on bail on 12 August 2011, but Mr H remains in custody. While the Appellants were in custody, the children were looked after by Mrs Hs mother, as well as by other friends and family. Initially following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children now regularly go to the prison with her. The two elder children are reluctant to visit. Within a few weeks of her release from custody, Mr and Mrs Hs relationship broke down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register in December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. On 29 May 2008 the Scottish Ministers ordered the Appellants to be extradited to the United States. The Appellants appealed to the High Court of Justiciary. The hearing of the appeals was delayed on a number of occasions as a result of changes of legal representation by both Appellants. Mrs Hs appeal was also further delayed by pregnancy complications and the birth of her two youngest children, and by the need for investigations into her mental health. Mr Hs appeal was further delayed by an apparent suicide attempt. The Appellants appeals were dismissed on 29 July 2011. The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lord Hope. Lord Brown, Lord Mance, Lord Judge and Lord Wilson give short concurring judgments. There is no appeal to this court against the determination of the High Court of Justiciary under the 2003 Act. But the Appellants are entitled to exercise their right of appeal under Scotland Act, as the question whether it could be incompatible with article 8 for them to be extradited raises a devolution issue. So the appeal is competent. The offences that have been alleged against the Appellants are very serious, attracting penalties of up to 20 years imprisonment. The allegation is of a sustained and deliberate course of unlawful conduct, during which the Appellants are said to have sold around $133,000 worth of chemicals to about 400 customers in the United States over a two year period [22 23]. Great weight must be given to the public interest in giving effect to a request for extradition. The more serious offence the greater will be that weight. The approach to Article 8 rights in extradition cases need not be radically different from that adopted in deportation or expulsion cases. Where, as here, the family life of children is involved, the best interests of the children are a primary consideration. The question is therefore: Is the Article 8 right outweighed by the strength of any other considerations? [49]. In view of the likely length of their sentences following conviction, and the lack of certainty as to the possibility of a transfer to prison in Scotland, the prospect has to be faced that in the event of conviction the Appellants are likely to be kept apart from their children, and their children perhaps apart from each other, for a very long time [53]. In relation to Mr H, the childrens family relationship with him has effectively been brought to an end by the breakdown of the parents relationship; the two elder childrens refusal to visit him in prison; the 2004 order that he have no contact with Mrs Hs three elder children; and the placing of all six children on the child protection register from July 2009 to December 2011. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. Mr Hs case does not come close to meriting his discharge under section 87(2) of the 2003 Act [53 54]. Mrs Hs case is more difficult. The childrens best interests clearly lie in continuing to live with their mother. There is a risk that they will be taken into care after she is extradited and that, if this happens, they will no longer be able to live together. Resuming family life after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for practical purposes, now fatherless [57]. On the other hand there is no escape from the fact that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. It is well established that extradition may amount to a justified interference under Article 8(2) if it is in accordance with the law, is pursing the aims of the prevention of crime or disorder and is necessary in a democratic society. If there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment [58 59]. Cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so the court must be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country[60 & 65]. However, there are strong practical reasons for concluding that the United States, where most of the witnesses reside and the degree of criminality involved is best assessed, is the proper place for the Appellants to be tried. Taking all of the relevant considerations into account, it would not be appropriate for the Appellants to be tried here. Nor would it be acceptable for Mrs H not to be prosecuted at all for the crimes with which she has been charged. And it would not be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution. The proper forum in which both prosecutions should be brought is the United States. The best interests of the children, even when weighed together with Mrs Hs own Article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the extradition request [70 71].

Between January and March 2011 the respondents, Mr and Mrs Al Malki, employed Ms Reyes as a domestic servant at their London residence. Mr Al Malki was a member of the diplomatic staff of the Saudi Arabian embassy in London. In June 2011, Ms Reyes began proceedings in the Employment Tribunal. She alleges that Mr and Mrs Al Malki mistreated her in the course of her employment and that she is a victim of trafficking. Those allegations are yet to be determined at trial. The Court of Appeal held that the Employment Tribunal lacked jurisdiction because Mr Al Malki was entitled to diplomatic immunity under article 31 of the Vienna Convention on Diplomatic Relations 1961 (the Convention), which is incorporated into the law of the United Kingdom by section 2(1) of the Diplomatic Privileges Act 1964. Under article 37(1) of the Convention, Mrs Al Malki therefore benefited from immunity as his family member. Mr and Mrs Al Malki then left the United Kingdom when Mr Al Malkis posting came to an end. Ms Reyes appealed to the Supreme Court, contending that the Employment Tribunal has jurisdiction to hear her claims under the exception, contained in article 31(1)(c) of the Convention, to the general rule of diplomatic immunity. Mr and Mrs Al Malki cross appealed, contending that they were never validly served with the claim form. Two parties intervened: the Secretary of State for Foreign and Commonwealth Affairs and Kalayaan, a charity which supports migrant domestic workers including victims of trafficking. The Supreme Court unanimously allows the appeal and dismisses the cross appeal. Lord Sumption gives the lead judgment, with which Lord Neuberger agrees. Lord Wilson gives a separate judgment in which he concurs with that of Lord Sumption, save in respect of one point. Lady Hale and Lord Clarke agree with the judgment of Lord Wilson. Diplomatic immunity is not an immunity from liability. It is immunity from the jurisdiction of the courts of the state which hosts the diplomat (the receiving state) [7 9]. The claim form was served validly, without violating the protections conferred on diplomats and their residences respectively by articles 29 and 30 of the Convention: the service of a claim form by post does not involve any trespass against the diplomats person or residence; it merely conveys information [13 16]. The Convention draws a fundamental distinction between the acts of a diplomat which are performed in the exercise of an official function and those which are not. The former are immune because they are committed on behalf of a state. The immunity of the latter is justified on the pragmatic basis that it facilitates diplomatic relations. Article 31(1) confers diplomatic immunity on both types of acts, subject to specified exceptions. Once a diplomats posting has come to an end, his or her immunity after leaving the receiving state is ordinarily limited to a residual immunity under article 39(2). That residual immunity applies only to acts performed the exercise of official functions [17 18]. Acts performed in the exercise of a diplomats official functions are limited to acts which are part of the diplomatic functions of the diplomatic mission, performed on behalf of the state which that diplomat represents [20]. Mr and Mrs Al Malki left the United Kingdom at the end of Mr Al Malkis posting, so the only potentially relevant immunity is the residual immunity in respect of official acts. The employment of Ms Reyes to carry out domestic tasks in the residence of Mr and Mrs Al Malki was not an act in the exercise of the diplomatic functions of the mission. Nor was it done on behalf of Saudi Arabia, even though it assisted Mr Al Malki in the performance of his official functions. It was not there the exercise of an official function. Consequently, neither Mr Al Malki nor Mrs Al Malki may rely on that residual immunity [48]. The appeal is therefore allowed. Unless within 21 days the parties in writing justify an alternative, the case will be remitted to the Employment Tribunal to be determined at trial [54 55]. Lord Sumption, with whom Lord Neuberger agrees, expresses the view (obiter) that Mr Al Malki would have been entitled to immunity under article 31(1) if he had still been in post. Ms Reyes sought to rely on an exception to article 31(1), set out in article 31(1)(c). That exception applies in civil claims relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Lord Sumption would have concluded that the acts alleged do not constitute the exercise of a professional or commercial activity [51]. Lord Sumption reasons that: (i) the wording of the exception envisages a diplomat who also conducts a business, practises a profession, or similar [21(1) (3)]; (ii) the drafting history of the Convention confirms that this was the drafters intention [21(4), 34 38]; (iii) the reasoning in case law from the United States supports that interpretation [22 25]; (iv) the reasons for the exception are obvious: nothing in the concept of diplomatic immunity requires it to protect a diplomats private business activities, in competition with others, from business related claims [21(5)]; (v) a wide interpretation of the exception risks exposing diplomats to liability in respect of everyday transactions, undermining the carefully constructed scheme of immunities under the Convention [21(6)]; (vi) nothing in the Convention nor in wider international law justifies interpretation of the Convention with reference to the International Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo, 2000) (the Palermo Protocol) and nothing in the Palermo Protocol would require a different interpretation of article 31(1)(c) [41 47]. Lord Wilson, with whom Lady Hale and Lord Clarke agree, welcomes the lack of any binding decision as to whether Mr Al Malki would have been immune, had he remained in his post. In his view the answer is not obvious [57]. This is because: (i) the exploitation of migrant domestic workers by diplomats is a significant problem [59]; (ii) there is a global determination to combat human trafficking [60]; (iii) the employment of trafficked persons may form part of the wider commercial activity of trafficking [61 62]; (iv) the absence of state immunity in similar cases is difficult to reconcile with recognition of diplomatic immunity in this case [63] [64]; (v) it is not clear how recognition of Mr Al Malkis immunity would further the stated purpose of the Convention [66]. Lord Wilson disagrees with Lord Sumptions opinion that it was inappropriate to construe article 31(1)(c) in the light of the more recent international condemnation of human trafficking [67]. He invites the International Law Commission to consider amendment of the Convention [68].

The two appeals concern whether, and if so, in what circumstances, an order or judgment of a foreign court in proceedings to set aside prior transactions, such as preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England and Wales. The appeals also raise the question of whether enforcement may be effected through the international assistance provision of the UNCITRAL Model Law implemented by the Cross Border Insolvency Regulations 2006, which apply generally, or the assistance provisions of s.426 of the Insolvency Act 1986 (the Insolvency Act), which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York in default of appearance for around US$10m in respect of fraudulent conveyances and transfer was enforced in England at common law. In New Cap, bound by the prior decision in Rubin, a default judgment of the New South Wales Supreme Court for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) and, alternatively, pursuant to the Insolvency Act. In both appeals the parties against whom the judgments were made were neither present in the foreign country nor had they submitted to the jurisdiction. Since both judgments were in personam, the essential issue was whether the existing principles were applicable or whether the Court should adopt separate rules for judgments in personam in avoidance proceedings, where the judgments were central to the purposes of the insolvency proceedings or part of the mechanism of collective execution. The Supreme Court by a majority of 4:1 (Lord Clarke dissenting) allowed the appeal in Rubin holding that there should not be special rules for avoidance judgments but dismissed the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian Court. Lord Collins gave the leading judgement. Broadly, under both the common law and the 1933 Act, a foreign court has jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy, the Court did not agree that, in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions. [115] A different rule for avoidance proceedings would mean courts would have to develop two aspects of jurisdiction: a requisite nexus between the insolvency and the foreign court and a requisite nexus between the judgment debtor and the foreign court. [117] Such a change would not be an incremental development of existing principles but a radical departure from substantially settled law, and more suitable for the legislature than judicial innovation. The restricted scope of the existing rules reflects the fact that there is no expectation of reciprocity on the part of foreign countries. [128 29] Expanding the principal would also be detrimental to United Kingdom businesses without any corresponding benefit. [130] Nor would any serious injustice result from adhering to the traditional rule. There were several other avenues open to officeholders. Rubin, for example, could have been founded on proceedings by trustees in England for the benefit of creditors under an express trust, and avoidance claims by the liquidator of an Australian company may be the subject of a request by the Australian court under the Insolvency Act. [131] Lord Collins (with the agreement of Lord Walker and Lord Sumption) held that the earlier Privy Council decision in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 was wrongly decided as there was no basis for the recognition of the US Bankruptcy order in the Isle of Mann in that case. [132] Whilst agreeing it was distinguishable, Lord Mance reserved judgment on whether it was wrongly decided. [178] As for enforcement under the Cross Border Insolvency Regulations 2006, there was nothing expressly or by implication in the UNICTRAL Model Law that applied to the recognition or enforcement of foreign judgments against third parties. [142 44] In relation to New Cap, Lord Collins concluded that the Syndicate had submitted to the jurisdiction of Australia having chosen to prove in New Caps Australian insolvency proceedings. It should not be allowed to benefit from the insolvency proceeding in this way without the burden of complying with orders made in that proceeding. [156 167] In these circumstances, the 1933 Act would apply to the Australian judgment and enforcement should be by way of registration under the 1933 Act rather than by the common law. In view of the conclusion that the Syndicate submitted to the Australian jurisdiction, the issue of enforcement under the Insolvency Act did not arise. However, Lord Collins expressed the opinion that the relevant subsections of the Insolvency Act were not concerned with enforcement of judgements having examined their construction and the statutory history. [152 154] Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195 6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co operate with the courts in the country of the principal liquidation to ensure a companys assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200 1]

These two appeals were heard together because both raise issues arising from claims of indirect discrimination on grounds of race and/or age and/or religion. Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) both to people who have and people who do not have the protected characteristic in question but which puts people with that characteristic at a particular disadvantage when compared with others and puts, or would put, the individual at that disadvantage, unless the employer can show that the PCP is a proportionate means of achieving a legitimate aim. Mr Essop is the lead appellant in a group of 49 people, six of whom have been chosen as test cases. They are, or were, all employed by the Home Office. They were required to pass a Core Skills Assessment (CSA) as a pre requisite to promotion to certain civil service grades. A report in 2010 established that Black and Minority Ethnic (BME) candidates, and older candidates, had lower pass rates than white and younger candidates. No one has been able to identify why this is. The appellants issued claims alleging that the requirement to pass the CSA constituted indirect discrimination on the grounds of race or age. The Home Office argued that section 19(2)(b) of the Equality Act 2010 required the appellants to prove the reason for the lower pass rate. The Court of Appeal agreed, upholding the decision of the Employment Judge. Mr Naeem is an imam who works as a chaplain in the Prison Service. Before 2002, Muslim chaplains were engaged on a sessional basis only, because it was believed that there were too few Muslim prisoners to justify employing them on a salaried basis as some Christian chaplains were. Mr Naeem worked on a sessional basis from 2001 but in 2004 became a salaried employee. At this date the pay scheme for chaplains incorporated pay progression over time. The average length of service of Christian chaplains was longer which led to a higher average basic pay. Mr Naeem argued that the incremental pay scheme was indirectly discriminatory against Muslim or Asian chaplains, resulting in lower pay in a post where length of service served no useful purpose as a reflection of ability or experience. Mr Naeems claim was rejected by the Employment Tribunal which found that the indirect discrimination was justified. The Employment Appeal Tribunal held that the scheme was not indirectly discriminatory at all because chaplains employed before 2002 should be excluded from the comparison between the two groups. The Court of Appeal held that it was not enough to show that the length of service criterion had a disparate impact upon Muslim chaplains: it was also necessary to show that the reason for that disparate impact was something peculiar to the protected characteristic of race or religion. The Supreme Court unanimously allows the Essop appeal. It remits the claims to be determined by the Employment Tribunal in accordance with the judgment. It unanimously dismisses Mr Naeems appeal. Lady Hale, with whom all the other Justices agree, gives the only judgment. The concept of indirect discrimination has following salient features: There has never been any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others. It is enough that it does [24]. Indirect discrimination, unlike direct discrimination, does not require a causal link between the characteristic and the treatment but does require a causal link between the PCP and the particular disadvantage suffered [25]. The reason for the disadvantage may not be in itself unlawful, or within the control of the employer, but both the PCP and the reason for the disadvantage must be but for causes of the disadvantage [26]. The PCP need not put every member of the group sharing the protected characteristic at a disadvantage. In the Essop case, it was irrelevant that some BME or older candidates could pass the CSA: the group was at a disadvantage because the proportion who could pass was smaller than the proportion of white or younger candidates [27]. It is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence [28]. It is always open to a respondent to show that the PCP is justified. There may well be a good reason for it. A wise employer will, however, try to see if PCPs which do have a disparate impact can be modified to remove that impact while achieving the desired result [29]. The disadvantage suffered by the individual must correspond with the disadvantage suffered by the group. The disadvantage in Essop was that members of the group failed the CSA disproportionately and the appellants suffered this disadvantage. However, a candidate who fails the CSA because he did not prepare or did not turn up for or finish the CSA has not suffered harm as a result of the PCP in question and in such a case it is open to the respondent to show that the causal link between the PCP and the individual disadvantage is absent. The Essop appeal is therefore allowed and the claims are remitted to the Employment Tribunal [30 36]. In Mr Naeems case the reason why the pay scale puts Muslim chaplains at a disadvantage is known. It is because they have on average shorter lengths of service than Christian chaplains [37]. The Court of Appeal was wrong to require the reason to relate to the protected characteristic [39]. The pool of comparators comprises all workers affected by the PCP in question. In this case the incremental pay structure affected all chaplains in the Prison Service and this did put the Muslim chaplains at a disadvantage compared with the Christians [42]. As regards justification, it was not in dispute that the pay scheme had a legitimate aim but the means adopted needed to be proportionate. The Employment Tribunal found as a fact that six years was the most required for newly appointed chaplains to have the skills and experience for reward at the top of the scale, but that in the circumstances the disadvantage suffered by Mr Naeem was no more than was necessary as the transition to a new shorter pay scale took its course. This was the correct test. It is not open to the courts on an appeal to disturb that finding, even if there were alternative means to reduce the disadvantage more quickly which could have been considered [43 47]. Mr Naeems appeal is therefore dismissed.

The issue in this appeal is whether the High Court of England and Wales has jurisdiction to order the return to this country of a small child who has never been present here on the basis that he is habitually resident here or that he has British nationality. The child, called Haroon in the judgment, was born on 20 October 2010 in Pakistan. His father was born in England and his mother in Pakistan. They married in Pakistan in 1999 and lived in England from 2000. They have four children: two daughters, born in 2001 and 2002, and two sons, one born in 2005 and Haroon. The father and the first three children, who were born in England, have dual British and Pakistani nationality and the mother has indefinite leave to remain in the United Kingdom. From 2006 the father began to spend a lot of time in Pakistan. The marriage was unhappy and in 2008 the mother moved into a refuge with her three children complaining of abuse. The mother arranged a three week trip to Pakistan in October 2009, in order to visit her father with the children. When she was there she was put under pressure by her father, her husband and his family to reconcile with her husband and was forced to give up the childrens passports. She strongly wished to return to England and telephoned the refuge asking for their help to return from February 2010, when she became pregnant with Haroon. Eventually in May 2011 her family helped her to return to England without the children and she began proceedings for their return in the High Court. On 20 June 2011 all four children were made wards of court and the father was ordered to return them forthwith. The father challenged the jurisdiction of the court to make orders for the return of the children. The judge found that all four children were habitually resident in England and Wales as the mother had not agreed that the children should live in Pakistan. The older children had retained their habitual residence in England. Haroon had habitual residence because he was born to a mother who was being kept in Pakistan against her will. The Court of Appeal by a majority allowed the fathers appeal in relation to Haroon only, on the ground that habitual residence was a question of fact (rather than deriving from the habitual residence of the parents) and required physical presence in the country. The Supreme Court unanimously allows the mothers appeal and holds that the court had inherent jurisdiction to make the orders in this case on the basis of Haroons British nationality. The case is however remitted to the judge to consider as a matter of urgency whether it is appropriate to exercise this exceptional jurisdiction. Lady Hale gives the main judgment, with which Lord Wilson, Lord Reed, and Lord Toulson agree. Lord Hughes gives an additional judgment explaining why he would have held that Haroon was habitually resident in the circumstances of this case. The orders exercising the courts wardship jurisdiction in this case did not fall within Part 1 of the Family Law Act 1986 (the 1986 Act) [26 28]. They did relate to parental responsibility within the scope of Council Regulation (EC) No 2201/2003 (the Brussels II revised Regulation)(the Regulation) [29], which applied regardless of whether there was alternative jurisdiction in a non member state [33]. The question was whether there was jurisdiction under article 8 of the Regulation, which depended on where the child was habitually resident [34]. Habitual residence is a question of fact and not a legal concept such as domicile. It is desirable that the test for habitual residence be the same for the purposes of the 1986 Act, the Hague Child Abduction Convention and the Regulation, namely that adopted by the Court of Justice of the European Union (CJEU)for the purposes of the Regulation [35 39]. The CJEU has ruled that habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors including the reasons for the familys stay in the country in question [54]. Four of the justices held that presence was a necessary precursor to residence. A child could not be integrated into the social environment of a place to which his primary carer had never taken him. Lord Hughes, by contrast, would have held that in these circumstances the child acquired the habitual residence of his mother. The CJEU had not had to consider a case with facts as stark as this, where the only reason that the child had been born in a particular place was because the mother had been deprived of her autonomy to choose where to give birth, and if it had been necessary to decide the appeal under the Regulation, the Supreme Court would have made a reference to it [58]. There was however another basis of jurisdiction which was open to the court to exercise in this case. By Article 14 of the Regulation, the common law rules as to the inherent jurisdiction of the High Court continue to apply if the child is not habitually resident in a Member State. The Crown retained the ancient power as parens patriae over those who owe it allegiance as British nationals. For most types of order this jurisdiction was removed by the 1986 Act but not for the order for return made in this case [60]. The judge below did not address herself to this basis of jurisdiction and whether it would be appropriate to exercise it. The case should be remitted to the High Court for it to be considered, in the light of the particular circumstances of this case [64 65]. If the court declined to exercise this jurisdiction, it would remain open to the mother to seek a reference to the CJEU on the issue of habitual residence [67]. Lord Hughes in an additional judgment did not accept that it was a minimum legal requirement of habitual residence that there had at some time been physical presence. This was tantamount to a rule when a purely factual enquiry was required. With a very young child the important environment was essentially a family one. Haroons family unit had its habitual residence in England. He therefore would have held that Haroon was habitually resident in England and Wales [93].

This appeal concerns the manner in which a court should calculate the amount of money, if any, that a person who has been unjustly enriched by the receipt of services must pay to the provider of those services by way of restitution. Alessandro Benedetti is an Italian citizen who lives in Switzerland. Naguib Sawiris is the CEO of Orascom Telecom Holding SAE (Orascom), a company incorporated in Egypt which operates a telecommunications business in the Middle East, Africa and South East Asia. He owns a company incorporated in the British Virgin Islands called Cylo Investments Ltd (Cylo). Mr Sawiris brother and father established companies incorporated in the Cayman Islands called April Holding and OS Holding (collectively, the Holding Companies), which hold assets for the benefit of Mr Sawiris wider family. In 2002, Mr Benedetti became aware that Enel SpA, the largest energy company in Italy, was contemplating a sale of its subsidiary, Wind Telecomunicazioni SpA (Wind). In December 2002, Mr Benedetti sought to persuade Mr Sawiris to invest in the acquisition of Wind. Mr Benedetti and Mr Sawiris signed a contract in January 2004 (the Acquisition Agreement) pursuant to which Wind would be acquired via a new company, Rain Investments SpA (Rain), the shares of which would be owned by Mr Sawiris and Mr Benedetti in a ratio of 2:1. The negotiations were to be handled by Mr Benedetti, with the support and advice of Mr Sawiris. Both parties were to use their best endeavours to obtain funding from third parties for the acquisition of Wind. Provision was made in the Acquisition Agreement for Mr Benedetti to receive remuneration for his services. Messrs Benedetti and Sawiris, however, were unable to secure sufficient funding from third parties for the acquisition of Wind to proceed as intended. Mr Benedetti and various potential third party investors sought to acquire Wind via a newly incorporated company called Weather Investments SpA (Weather I). One of the potential third party investors lost interest in that deal and 99% of the shares in Weather I were transferred to Mr Sawiris on 25 March 2005, via Mr Benedetti. On the day before that transfer took place, Mr Benedetti, as a director of Weather I, opportunistically made agreements with his own companies without the knowledge of Mr Sawiris. One of those agreements (the First Brokerage Agreement) was made with International Technologies Management Ltd (ITM). Pursuant to the First Brokerage Agreement, dated 24 March 2005, Weather I appointed ITM to provide brokerage services in return for a payment of around 87 million (0.7% of the ultimate cost of the acquisition of Wind). It became necessary for the funds for the acquisition of Wind to be provided by Mr Sawiris, Cylo and the Holding Companies. A deal was signed, with the assistance of Mr Benedetti, on 26 May 2005. Enel and its holding company, Enel Holding BV, entered into a sale and purchase agreement (the SPA) pursuant to which the majority of the shares in Wind were sold to Cylo and the Holding Companies (via a company called Weather Investments Srl (Weather Italy), of which Mr Benedetti was a director) for over 3 billion. The transaction was completed in two stages, on 11 August 2005 and 8 February 2006. Mr Benedetti did not have a beneficial interest in any company which acquired an interest in Wind. On the same day as the signing of the SPA, the rights and liabilities of Weather I, including its obligations to ITM under the First Brokerage Agreement, were transferred to Weather Italy. That was effected by Mr Benedetti, as a director of all three companies, without the knowledge of Mr Sawiris. Mr Sawiris, after discovering the existence of the First Brokerage Agreement, believed that the 87 million brokerage fee to be paid to ITM was needed in order to discharge Mr Benedettis liabilities to third parties who had assisted in the acquisition of Wind. Mr Sawiris suspected that the sum would be kept by Mr Benedetti personally and was unhappy about the size of the sum. Mr Sawiris asked for the brokerage fee to be reduced and, in June 2005, suggested a payment of 75.1 million. Mr Benedetti would not agree to that sum. In July 2005, however, an agreement between Weather Italy and ITM (the Revised Brokerage Agreement), backdated to 26 May 2005, provided that ITM would receive a brokerage fee of 67 million (i.e. 0.55% of the value of the transaction). That sum was paid to ITM on 12 August 2005. Mr Benedetti brought numerous claims against Mr Sawiris, Cylo and the Holding Companies, including a claim for unjust enrichment (on the basis that the consideration for the services that he had provided had failed). All of Mr Benedettis claims were dismissed except the unjust enrichment claim, for which Mr Benedetti was awarded 75.1 million. Mr Sawiris, Cylo and the Holding Companies were held to be jointly and severally liable for that sum, which was calculated on the basis of the offer made by Mr Sawiris to Mr Benedetti in June 2005. The Court of Appeal held that the Holding Companies had not been unjustly enriched by any services received from Mr Benedetti, and further held that Mr Sawiris and Cylo were jointly and severally liable to Mr Benedetti for only of 14.52 million. That sum was based on the conclusion that the market value of the services provided by Mr Benedetti to Mr Sawiris was 36.3 million and Mr Benedetti had already been paid for 60% of those services. The Court of Appeal took the view that the Acquisition Agreement and Mr Sawiriss offer of 75.1 million in June 2005 were irrelevant to the calculation of the sum due to Mr Benedetti. In his appeal to the Supreme Court, Mr Benedetti argues that the sum to be awarded to him should be based on the terms of the Acquisition Agreement or, alternatively, on the offer made by Mr Sawiris in June 2005. Mr Sawiris and Cylo cross appealed, arguing that Mr Benedetti was not entitled to anything because they had already fully paid Mr Benedetti for his services. Mr Benedetti initially asked the Supreme Court to rule that the Holding Companies were jointly and severally liable with Mr Sawiris and Cylo, but he abandoned that part of his appeal before the hearing. The Supreme Court unanimously dismisses Mr Benedettis appeal and allows Mr Sawiris cross appeal. Lord Clarke gives the leading judgment. Where a restitutionary award is made on the basis of unjust enrichment, it is to be calculated as the value of the benefit received by the defendant at the expense of the claimant [10 14]. Where the benefit takes the form of services, that will normally be the market value of the services performed [15 16, 100 103, 180]. The market value may depend on the personal characteristics of the defendant, such as his buying power in the relevant market [17, 101, 184]. Lord Clarke (with whom Lords Kerr and Wilson agree) suggests that the sum to be awarded to a claimant can be reduced on the basis that the defendant subjectively valued the services that he received at less than the market value (subjective devaluation) [18, 187]. Lord Reed suggests that that is not permissible [113, 123, 137], and Lord Neuberger prefers not to express a concluded view on the issue [188, 192]. That difference of opinion is likely to be significant in very few cases, and it is unnecessary to resolve the debate for the purposes of this case [25 26, 119, 188 189]. It is not, however, possible (save perhaps in exceptional circumstances) to increase the amount awarded to a claimant on the basis that he valued the services at more than the market price (subjective revaluation) [29, 30, 34, 115, 198]. The Acquisition Agreement is not relevant to the calculation of what, if any, sum Mr Sawiris and Cylo have to pay to Mr Benedetti. The parties abandoned the Acquisition Agreement after it proved difficult to find third party investors. It is not, therefore, appropriate to have regard to that contract in determining the sum, if any, to which Mr Benedetti is entitled for the services that he performed [41, 42, 85]. The trial judge found that Mr Bendetti performed the role of a broker or adviser and, on that basis, the market value of the services that he provided was 36.3 million. There is no basis for challenging those findings. However, the Court of Appeal was right to conclude that the judge fell into error in awarding Mr Benedetti more than the market value of his services based on Mr Sawiris offer in June 2005. That offer is not relevant to the calculation of what, if any, sum Mr Sawiris and Cylo have to pay to Mr Benedetti because subjective revaluation is not permissible, save perhaps in exceptional circumstances. In any event, the offer of 75.1 million made by Mr Sawiris in June 2005 did not represent his genuine view of the value of Mr Benedettis services; the offer was considered by Mr Sawiris to be generous and was made under the shadow of threatened litigation. There is no reliable evidence of Mr Sawiriss genuine opinion as to the value of Mr Benedettis services [44, 56, 66, 173]. The Court of Appeal was wrong to award Mr Benedetti 14.52 million. The market value of his services was 36.3 million and, as the trial judge found, he has already received 67 million (via ITM). The trial judge gave no reasons for saying that the payment of 67 million related only to 60% of Mr Benedettis services, and it was inconsistent with some of his other conclusions, such as the fact that all of Mr Benedettis services fell within the scope of his role as a broker/adviser and that his services would normally be paid for by way of a single payment representing a percentage of the value of the transaction. Furthermore, all of Mr Benedettis services had been provided before the date on which the Revised Brokerage Agreement was signed. That agreement was expressed to cover services performed by Mr Benedetti in the past as well as in the future, but there were no further services to be performed by him at that date. The payment of 67 million, therefore, covered all of the services provided by Mr Benedetti [72 78, 94 95]. Lord Neuberger agrees that the cross appeal should be allowed but takes the view that the payment of 67 million to ITM was not attributable to the Revised Brokerage Agreement at all [211].

The question in this appeal is whether, in the period 1 October 2002 to 5 December 2005, the takings from slot machines (the disputed machines) operated by the appellants (Rank) were subject to Value Added Taxation (VAT). If the takings resulted from the provision of a gaming machine, as defined, then they were subject to VAT. The disputed element of the definition of gaming machine was: the element of chance in the game is provided by means of the machine. If this was not satisfied, then the takings from the disputed machines were exempt from VAT. The disputed machines were computerised. The machines typically pay out according to the symbols on the machine when it stops. The positions the reels come to rest on are chosen by a Random Number Generator (RNG), which is the system for producing numbers for the machines software. The RNG is constantly generating random numbers. As soon as the lever is pulled or the button is pressed, the most recent random number is used to determine the result. This means that the result varies depending on exactly when the game is played. It was common ground that a slot machine is a gaming machine for VAT purposes when the element of chance is provided by a component that forms part of the body of the machine on which the game is played. This appeal concerned multi terminal systems. In each case the RNG might be housed in a separate box or hung on the wall, but was connected by a wire to the playing terminals. Up to six playing terminals might be served by a single remote RNG. Each terminal was designed to be used with the RNG obtained from the manufacturer of the terminal, the terminals and RNGs were sold together, and each RNG was manufacturer specific. Though linked to a single RNG, each terminal could be operated independently and could offer the same or different games. The VAT and Duties tribunal concluded, in favour of Rank, that the disputed machines were not gaming machines because the RNG was not part of any terminal and the element of chance was not provided by the machine containing the slot. The High Court agreed. The Court of Appeal overturned this decision; Rimer LJ considered that each terminal and the single RNG could together constitute a machine. Rank appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the judgment of the Court with which Lord Neuberger, Lord Reed, Lord Toulson and Lord Hodge agree. The question is how the element of chance is provided in the game; the definition implies an active function in the game as it is played, rather than the mere passive transfer of information to the player. No one suggested any good policy reason for distinguishing between on the one hand, embedded software or a single terminal RNG, and on the other a multi terminal RNG. [22 23] The natural meaning of machine in context supports the Court of Appeals approach. A typical and accurate definition from the Concise Oxford English Dictionary is an apparatus using or applying mechanical power, having several parts, each with a definite function and together performing certain kinds of work. The overall purpose is the creation of a game of chance for the player, in which purpose both the terminal and the RNG play, and are designed to play, essential and connected functions. The tribunals approach limits attention to the physical identity of the equipment as viewed by the player, but ignores the necessary components of the task which the equipment is performing. The terminal is useless for playing the game without the RNG. Where the RNG is linked to a single terminal, the tribunal saw nothing wrong in principle in viewing them as together being a single machine for playing the game. Similarly, where the RNG serves several terminals, it is appropriate to treat the combined apparatus as a machine. [25 26] Rank argued that this approach is inconsistent with the limits on the numbers of machines on any premises (section 31 of the Gaming Act 1968). That restriction seems directed at the terminals available to individual players. It is not necessary to resolve the issue. The practical answer is that the word machine, where it matters, can refer to an individual terminal. But the relevant phrase is the element of chance in the game is provided by means of the machine. Chance is the possibility of something happening, not in the abstract, but for a particular player in the context of a particular game; the possibility of that player getting the combination of numbers which wins a prize, or a combination which does not. [29 30] The outcome of the game is determined by pressing a button or pulling a lever on the terminal. It is a more sophisticated equivalent of a player rolling a dice, where the winning number is produced by means of the players action in throwing the dice. The RNG produces a pre programmed sequence of numbers which changes very rapidly. The element of chance in any game is provided by means of the players action in pressing the button, so interrupting that ever changing sequence at a particular moment. The terminal is not simply communicating information from the RNG, but is the active means by which the winning or losing combination is generated. The RNG is a necessary part of the process, but its response (wherever it is situated) is entirely automatic. In these circumstances, it is a fair use of language, and consistent with the apparent policy of the legislation, to describe the element of chance as provided by means of the terminal. [31] Accordingly, Ranks appeal is dismissed. [32]

The appeal concerns an order made by City of Westminster Magistrates Court for forfeiture of donations made to the United Kingdom Independence Party (UKIP), a registered political party. Restrictions on donations to political parties are set out in Chapter II of Part IV of the Political Parties, Elections and Referendums Act 2000 ("PPERA"). Section 54 PPERA provides that a donation must not be accepted by a political party if the donor is not a permissible donor at the time of receipt. Permissible donors are defined in section 54(2)(a) as individuals registered in an electoral register. Under section 56(1) PPERA, a political party which receives a donation must take all reasonable steps to verify the identity of the donor and whether he is a permissible donor. Under the terms of the statute, if a party is not satisfied that a donation is made by a permissible donor it can return the donation within thirty days. Only if it fails to do so will it be regarded as having accepted the donation. Sections 58 60 of PPERA provide for forfeiture in relation to donations made by impermissible donors. In particular, section 58(2) provides that where a political party has accepted a donation which it is prohibited from accepting, the Electoral Commission may apply to a Magistrates Court for an order of forfeiture by the party of an amount equal to the value of the donation. Mr Alan Bown, a member of UKIP, was entitled to be registered as an elector but, for the period 1 December 2004 2 February 2006, his name was not on any electoral register. During that period Mr Bown made donations to UKIP amounting to 349,216. UKIP did not return any of the donations within thirty days, or at all. On 16 March 2007, the Electoral Commission applied to the City of Westminster Magistrates Court for an order of forfeiture of an amount equal to the donations. The judge ordered the forfeiture of only 14,481, being the value of donations received by UKIP after the date of a meeting between the Electoral Commission and the party at which UKIP was aware that Mr Bown was not on the electoral roll. Following judicial review proceedings challenging the decision of the Magistrates Court brought by the Electoral Commission, the Court of Appeal held that the Magistrates Court had erred in its construction of PPERA and had not made a valid exercise of discretion under s58(2): its decision was irrational and inadequately reasoned. The Court held that (1) s.58(2) of PPERA required that an order for forfeiture of an unlawful donation must reflect the full sum of the donation, and (2) on the exercise of the discretion by the Magistrates Court, there is a strong presumption in favour of forfeiture. UKIP appealed to the Supreme Court. The appeal was allowed and the order of the Magistrates Court restored. The majority of the Court (Lords Phillips, Mance, Kerr and Clarke) held that section 58(2) permitted the forfeiture of a sum less than the total donation and that the presumption in favour of forfeiture was displaced in the present case where the donor was eligible to be on the UK electoral register but had not been registered by reason of administrative oversight. UKIP would be required to forfeit 14,481. Three dissenting Justices (Lords Rodger, Brown and Walker) would have held that the full donation must be forfeited. Lord Phillips, with whom Lords Mance, Kerr and Clarke agreed, decided that the appeal should be allowed. Lord Phillips stated that the primary issue is whether section 58(2) confers a broad discretion on the court to choose to make an order for forfeiture or whether there is a strong presumption in favour of forfeiture (the presumption issue). Related to the presumption issue is the issue of whether section 58(2) PPERA permits the court to make an order for partial forfeiture (the all or nothing issue). In order to answer the questions raised in the appeal, it was necessary to look at the legislative history of PPERA, in particular the Fifth Report of the Committee on Standards in Public Life on the Funding of Political Parties in the United Kingdom, published in October 1998 (the Neill Report), and White Paper Cm4413. That history provided a clear picture of the objects of Chapter II of Part IV of PPERA. The primary object is to prevent donations to political parties from foreign sources. Parliament made a significant change to the test proposed in the Neill Report in restricting permissible donors to those actually on an electoral register, excluding those eligible to be put on one. The change was not due to the fact that there is anything undesirable about parties being funded by those who are not on an electoral register; rather, it was made for pragmatic reasons. The secondary object of the Chapter II of Part IV of PPERA is to provide a scheme for achieving the primary object that is easy to apply, easy to police and that contains adequate sanctions for non compliance (paras [25] [26]). There are two distinct objects of the power to forfeit in section 58(2). The primary object of forfeiture is the direct prevention of the mischief that the legislation is designed to prevent the receipt by a political party of foreign funding. The second object of the power to forfeit is to provide a deterrent or sanction against failure to comply with the requirements of the Act that are designed to make sure that donations are not received from an impermissible donor (paras [31] [35]). Rather than following the eligibility test proposed by the Neill Report, Parliament chose to adopt a different scheme under which impermissible donations may or may not be foreign. Under this scheme, the significance of an individual impermissible donation may vary widely. It was clear that in making the power to forfeit discretionary, Parliament intended that the Magistrates Court should discriminate between cases where forfeiture was warranted and cases where it was not. Parliament intended the court to consider whether forfeiture was a proportionate response to the facts of the particular case (paras [35] [36]). Where a political party has accepted a donation from an impermissible source, there should be an initial presumption in favour of forfeiting the donation. If the donor was eligible to be registered on the electoral roll, the initial presumption in favour of forfeiture will have been rebutted and the question will then be whether there have been failures to comply with those requirements of the Act that are designed to ensure that such donations are not accepted, and the nature of those failures (paras [47] [49]). On the all or nothing issue, Lord Phillips noted that the language of section 58(2) suggests that there is only one amount that can be forfeited. However, the word forfeit is used in an unusual way in the context of the statute, in a manner which is more akin to a fine. Considering the context, the preferable interpretation is to treat the power to order forfeiture of an amount equal to the value of an impermissible donation as implicitly including the power to order forfeiture of a lesser sum (paras [50] [51]). Lord Kerr (with whom Lord Mance agreed), whilst agreeing with the outcome proposed by Lord Phillips, held that the critical issue was the all or nothing issue. If partial forfeiture is possible it follows that the courts discretion as to whether or not to order forfeiture should be wide; if not, a broad discretion is not likely to be appropriate. As the primary aim of PPERA was to ban foreign donors, it was possible to hold that Parliament did not intend that where other donors were caught because of the simplicity and breadth of the provision that was adopted to achieve that aim, they would be subject to the same draconian penalty as those to whom the legislation was principally directed (para [114]). The court has the power to make an order of forfeiture for less than the full amount of the donation, and its discretion as to the level at which to fix the sanction at less than full forfeiture must be wide. Agreeing with Lord Phillips, where it is shown that a donation has come from an impermissible source it should be presumed that it is a foreign donation and, if that presumption is not rebutted, forfeiture should follow. If, however, it can be shown that the donation came from someone who was entitled to be on an electoral register, the level of forfeiture should reflect the particular circumstances of the case (para [116]). The dissenting judgments of Lord Rodger and Lord Brown (with whom Lord Walker agreed) held that the language of PPERA was clear. UKIP was not permitted to retain money that it had not lawfully been entitled to receive. Section 58(2) does not permit the forfeiture of a sum less than the donation. In most cases, and certainly in this case where neither the benefit nor its value has ever been returned, it is difficult to see how the discretion could properly be exercised other than by order for forfeiture (paras [63] [64], [90] [95]).

Is it an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to say that the individual would lie and feign loyalty to that regime in order to avoid the persecution to which he would otherwise be subjected? This is the question which arises in these appeals, which form a sequel to this courts decision in HJ (Iran) v Secretary of State for the Home Department in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so (the HJ (Iran) principle). [1] The country guidance for Zimbabwe, applicable in these cases, found that there is a campaign of persecution perpetrated by undisciplined militias who have delivered a quite astonishingly brutal wave of violence to whole communities thought to bear responsibility for the wrong outcome of the March 2008 election. Any attempt to target those who are themselves involved with the Movement for Democratic Change (MDC) has been abandoned and those at risk includes anyone who cannot demonstrate positive support for Zanu PF or alignment with the regime. The means used to establish loyalty include requiring the production of a Zanu PF card or the singing of the latest Zanu PF campaign songs. Inability to do these is taken as evidence of disloyalty and therefore support for the opposition. In deploying these militia gangs, the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement. [2], [15] [16] The first appeal concerns RT, SM and AM. They arrived in the UK from Zimbabwe at various times between 2001 and 2008 and have each claimed asylum here. Each of their claims was refused. RT, while credible, had never been politically active. SM was not a credible witness and had given inconsistent accounts of her involvement with the MDC and had lied in a number of respects. On reconsideration it was found that she had no connections with MDC. AM was found not to be a credible witness and although he was in favour of the MDC, he had no political profile and was not politically engaged prior to his departure from Zimbabwe. The Court of Appeal allowed the appeals of RT, SM and AM on the basis that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that is covered by the HJ (Iran) principle and does not defeat their claims for asylum. [4] [10] The second appeal concerns KM. He claimed to have arrived in the UK in January 2003 on a false South African passport and claimed asylum on 20 August 2008. His claim was refused. While his son had been granted asylum in the UK because he had a well founded fear of persecution in Zimbabwe on the grounds that he was a sympathiser of the MDC, KM was found by the Tribunal not to have established any adequate factual basis to support his claim that he would be at real risk of finding himself in a position where he would be unable to demonstrate loyalty to the regime. In the Court of Appeal, although the Secretary of State accepted that the appeal should be allowed because it was arguable that adequate consideration had not been given to the assessment of risk, there was an issue between the parties as to whether the case should be allowed outright or sent back to the Tribunal. The Court of Appeal allowed the appeal and sent the case back for further decision. [12] [14] The Supreme Court unanimously dismisses the Home Secretarys appeals in the cases of RT, SM and AM and allows KMs appeal. The HJ (Iran) principle applies to applicants who claim asylum on the grounds of a well founded fear of persecution for reasons of lack of political belief. Lord Dyson gives the leading judgment with which Lord Hope, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Reed agree. Lord Kerr also gives a short concurring judgment. There are no hierarchies of protection amongst the Refugee Convention reasons for persecution. Thus the Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly as a homosexual. The Convention reasons reflect characteristics or statuses which either the individual cannot change or cannot be expected to change because they are so closely linked to his identity or are an expression of fundamental rights.[25] The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them.[26] The right to freedom of thought, opinion and expression protects non believers as well as believers and extends to the freedom not to hold and not to have to express opinions. There is no basis in principle for treating the right to hold and not to hold political beliefs differently from religious ones. There can also be no distinction between a person who is a committed political neutral and one who has given no thought to political matters. [32] [45] It is not in doubt that an individual may be at risk of persecution on the grounds of imputed political opinion and that it is nothing to the point that he does not in fact hold that opinion. [53] Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime as a supporter of its opponents and persecuted on that account. But a claim may also succeed if it is shown that there is a real and substantial risk that, despite the fact that the asylum seeker would assert support for the regime, he would be disbelieved and his neutrality would be discovered. [55] This gives rise to questions of fact, but it is difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to an area where political loyalty would be assumed and where, if he was interrogated, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved and therefore persecuted. [56] [59]

Between 1973 and 2009 the Respondent, Taylor Clark Leisure Plc (TCL) was the representative member of the Taylor Clark VAT Group (the VAT Group) in terms of Article 11 of the Principal VAT Directive 2006/112/EEC (the Principal Directive) and its predecessor, Article 4.4. of the Sixth Council Directive (77/388/EEC) (the Sixth Directive). The idea of a VAT group of companies was introduced to simplify the collection of VAT. In about 1990, TCL undertook a group reorganisation which involved the transfer of its bingo business to another member of the VAT group, Carlton Clubs Ltd (Carlton). The transfer to Carlton was effected by a letter dated 30 March 1990 (the 1990 Asset Transfer Agreement). In 1998 Carlton ceased to be part of the VAT group. In 2008 the House of Lords held that UK legislation that imposed a shortened three year time limit on claims for the refund of overpaid VAT in the period from 1973 to 4 December 1996 without providing for an adequate transitional period, which was fixed in advance, was contrary to European law. In response, the UK Parliament enacted s121 of the Finance Act 2008 (FA 2008) which provides an extended time limit for claims relating to a prescribed accounting period ending before 4 December 1996. Instead of requiring that the claim must be made within the three year time limit, s121 required such a claim to be made before 1 April 2009. On 16 November 2007, Carlton submitted four claims to the Appellant (HMRC) under s80 of the Value Added Tax Act 1994 (VATA) for repayment of VAT output tax, which TCL as representative member for the VAT group had overpaid in accounting periods between 1973 and 1998. Carlton submitted these claims without notifying TCL. These claims related to (i) mechanised cash bingo takings, (ii) gaming machine takings, (iii) participation fees and (iv) added prize money and participation fees. On 8 January 2009, it submitted a revised claim (iv) in which it asserted a right to claim overpaid VAT back to 1973 (i.e. before its incorporation in 1990) by relying on the 1990 Asset Transfer Agreement. After initially refusing all of Carltons claims, HMRC paid the sum claimed by Carlton in its revised claim (iv) to TCL (as representative member of the VAT Group) on 12 May 2009. On 23 September 2010, HMRC confirmed to TCL an assessment for repayment of the sum paid on 12 May 2009 and refused TCLs claim for repayment of the other claims (i.e. claims (i), (ii) and (iii)). HMRC gave three reasons: (i) TCL had not submitted claims before the expiry of the time limit imposed by s121 FA 2008; (ii) the claims predating 31 March 1990 had been assigned to Carlton and (iii) because the VAT group had since been disbanded (on 28 February 2009), the claim for over declared output tax must be made by the company whose activities gave rise to the over declaration and Carlton had made that claim. TCL and Carlton pursued rival appeals against HMRCs decision. The First Tier Tribunal (FTT) held, amongst other things, that TCL had not made a claim under s80 of VATA and could not rely on Carltons claims. On appeal by TCL, the Upper Tribunal (UT) found that TCL had not made a claim and no claim had been made on its behalf before expiry of the time limit. TCLs further appeal to the Inner House of the Court of Session (IH) on this issue was successful. The IH held that the representative member embodied the VAT group which was a single taxable person, or a quasi persona and Carltons claims fell to be construed as claims on behalf of TCL. The Supreme Court unanimously allows HMRCs appeal. Lord Hodge gives the lead judgment with which the other Justices agree. HMRCs principal argument is that the IH erred in holding that a claim for repayment of VAT by an individual member of a VAT group must normally be construed as a claim made on behalf of the representative member of that group. HMRC argued that Carltons claim was made on its own behalf and TCL could not rely on it to avoid the statutory time bar. TCL relied on the reasoning of the IH and argued that, as the representative member, it was entitled to rely on Carltons claims [18]. The Court notes that Article 11 of the Principal Directive (like Article 4.4 of the Sixth Directive), is permissive and is not prescriptive; it does not require member states to institute a single taxable person regime and does not lay down a template as to how a member state will treat a group of persons as a single taxable person [19]. It is clear from the words in s43(1) of VATA that the UK chose to achieve the end which the Principal Directive authorised not by deeming the group to be a quasi person but by treating the representative member as the person which supplied or received the supply of goods or services. In UK legislation, the single taxable person is the representative member [21 22]. There is no need to complicate matters by introducing a concept of the VAT group as a quasi persona in an analysis of the UK legislation [26]. Section 43 of VATA does not make the group a taxable person but treats the groups supplies and liabilities as those of the representative member for the time being [27]. It is clear from s80 of VATA that HMRCs liability for overpaid output tax is owed to the person who accounted to them for VAT. It is also clear that a claim must be made for the credit or repayment to that person before HMRC comes under any liability to credit or repay. It follows from the operation of s43 of VATA that where the representative member has overpaid VAT, the person entitled to submit a claim during the currency of a VAT group, unless the claim has been assigned, is either the current representative member of the VAT group or a person acting as the representative members agent [29]. The FTT correctly found that Carlton did not make the claims on behalf of TCL. Four reasons supported this finding. Firstly, when Carlton made the claims, it had long ceased to be a member of the VAT group. Secondly, it appears from the 2007 letters that Carlton had already presented claims in relation to its own business activities in the period after it had left the VAT group. Thirdly, the use by Carlton of the VAT groups VAT registration number was necessary to identify the original source of the allegedly overpaid VAT but did not disclose who was entitled to the repayment. Fourthly, in each of the claims submitted in 2007, Carlton was claiming repayment of sums paid from 1973, long before its incorporation in 1990, as well as in the period after 1990 when it was member of the VAT group. It clarified the basis on which it made those claims in its 2009 revised claim. At the time, both Carlton and HMRC would have readily understood Carlton to be claiming repayment in its own interest [34 36]. The 2009 revised claim provides relevant and admissible evidence concerning the basis upon which Carlton made the 2007 claims [37]. Carlton did not act as TCLs agent. Carlton had no actual authority to send the letter on TCLs behalf. In any case, in circumstances where the UT made its decision on the basis that Carlton had submitted the letters on its own behalf, it was not open to an appellate court to find that there was an agency relationship between Carlton and TCL. Furthermore, there is also no basis for the argument that TCL ratified Carltons claims, thereby conferring retrospective authority upon them. [38 39]. Finally, TCL applied to the Court to make a reference in this case to the Court of Justice of the European Union (CJEU) but this is neither necessary nor appropriate. A ruling by the CJEU on the nature of the single taxable person is not necessary for the determination of this appeal [40 41]. There is also no inconsistency between schedule 1 of VATA and the Courts interpretation of s43 of VATA [42].

The appeals, brought by the Commissioners for Her Majestys Revenue and Customs (HMRC), are concerned with schemes which were designed to avoid the payment of income tax on bankers bonuses, by taking advantage of exemptions under Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 2003, as amended by Schedule 22 to the Finance Act 2003 (ITEPA). In particular, under section 425(2) of ITEPA, an exemption is conferred on the award to employees of restricted securities, defined by section 423 as shares which are subject to provision for their forfeiture if some contingency occurs. Under the schemes, the banks decided to award discretionary bonuses to their employees, but rather than paying the bonuses to them directly, the banks instead used the amount of the bonuses to pay for redeemable shares in offshore companies set up for the purposes of the schemes. The shares were then awarded to the employees in place of the bonuses. Conditions were attached to the shares making them subject to forfeiture if a contingency occurred, so as to qualify for the exemption. In the UBS case, the contingency was a specified rise in the FTSE 100 within the next three weeks. The contingency was unlikely to occur, and it was also hedged against so that the employees would lose out slightly, but not significantly, if it did occur. In the DB case, the contingency was the employees being dismissed for misconduct or voluntarily resigning within the next six weeks. Once the exemptions had accrued, the shares were redeemable by the employees for cash. HMRC decided that tax should be assessed as if the employees had been paid in cash the amount of the bonuses allocated to them. UBS and DBs appeals to the First Tier Tribunal were dismissed. The Upper Tribunal heard the cases together and allowed UBSs appeal. DBs appeal was dismissed on the basis that the scheme failed to comply with a technical requirement for exemption. The Court of Appeal dismissed HMRCs appeal in the UBS case, and allowed DBs appeal. The Supreme Court unanimously allows HMRCs appeals. Lord Reed gives the lead judgment, with which the other Justices agree. Lord Reed explains that the case of W T Ramsay Ltd v Inland Revenue Comrs [1982] AC 300 extended the purposive approach to statutory construction, which was orthodox in other areas of the law, to tax cases. It also established that the analysis of the facts depends on that purposive construction of the statute [61 62]. Taxing statutes generally draw their life blood from real world transactions with real world economic effects. Where an enactment is of that character, and a transaction, or an element of a composite transaction, has no purpose other than tax avoidance, it can usually be said that to allow tax treatment to be governed by transactions which have no real world purpose of any kind is inconsistent with that fundamental characteristic. Where schemes involve intermediate transactions inserted for the sole purpose of tax avoidance, it is quite likely that a purposive interpretation will result in such steps being disregarded for fiscal purposes [64]. In the present appeals, Lord Reed begins by asking whether a purposive interpretation of the legislation is possible. The context of Chapter 2, and the background to its enactment, provide some indication of Parliaments intention. The purposes of Part 7 were broadly identified in Grays Timber Products Ltd v Revenue and Customs Comrs [2010] UKSC 4 as being: (i) to promote employee share ownership by encouraging share incentive schemes; (ii) since such schemes require benefits to be contingent on future performance, creating a problem if tax is charged on the acquisition of the shares, to wait and see in such cases until the contingency has fallen away; and (iii) to counteract consequent opportunities for tax avoidance [74]. The background to the enactment of Chapter 2 indicates that it was intended to address practical problems, and to forestall opportunities for tax avoidance [75]. It is difficult to accept that Parliament intended to encourage, by exemption from taxation, the award of shares to employees, when the award of such shares has no purpose other than the obtaining of the exemption itself [77]. The section 425(2) exemption, in respect of the acquisition of securities which are restricted securities by virtue of section 423(2), was designed to address practical problems arising from valuing a benefit which was, for business or commercial reasons, subject to a restrictive condition involving a contingency. Nothing suggests that Parliament intended that section 423(2) should also apply to restrictive conditions that have no business or commercial purpose, but are deliberately contrived solely to take advantage of the exemption [78]. This is not undermined by the section 429 exemption, which is confined to two specific situations falling within the broader section 425 exemption, whose purposes are consistent with the general approach to Chapter 2 [80]. The fact that Parliament has expressly dealt with tax avoidance in Chapters 3A to 3D does not support the inference that Parliaments intentions in relation to anti avoidance had been exhaustively expressed [82]. Lord Reed concludes that the reference in section 423(1) to any contract, arrangement or condition which makes provision to which any of subsections (2) to (4) applies is to be construed as being limited to provision having a business or commercial purpose, and as not applying to commercially irrelevant conditions whose only purpose is the obtaining of the exemption [85]. In the UBS case, Lord Reed finds that the condition was completely arbitrary, and had no business or commercial rationale. Further, the economic effect of the restrictive condition was nullified by the hedging arrangements, except to an insignificant and pre determined extent. Accordingly, the condition should be disregarded, with the consequence that the shares are not restricted securities within the meaning of section 423 [86 7]. The condition in the DB case operated only for a very short period, during which the possibility that it might be triggered lay largely within the control of the employee who would be adversely affected. It had no business or commercial purpose, and thus fell outside section 423 [88]. Having found that the exemption does not apply, Lord Reed holds that the proper basis for taxation of the bonuses is as shares, and not as cash. The shares did not simply function as a cash delivery mechanism: the amount of cash for which the shares might be redeemed was neither fixed nor ascertainable when the shares were acquired [92]. The value of the shares has to be assessed as at the date of their acquisition, and the restrictive conditions must be taken into account, as ordinary taxation principles require the tax to be based on the shares true value [94 5].

These appeals are brought on behalf of various lone parent mothers and their young children to challenge the legislative provisions known as the benefit cap. These provisions originally capped specified welfare benefits at a total of 26,000 per household. But by the Welfare Reform and Work Act 2016 the government and Parliament reduced the cap to 23,000 for a household in London, 20,000 elsewhere. Single people (including lone parents) are exempt from the revised cap (the cap) if they work for 16 hours each week. The aim of the cap is to incentivise work. The appellants argue that in introducing the cap, the government, through Parliament, has discriminated against lone parents of young children, whose childcare obligations severely curtail their ability to work, and against the children themselves. In the DA case the appellants are three lone parent mothers two of whom had a child under two at the outset of proceedings, and those two children themselves. In DS, the appellants are two lone parent mothers with nine children, three of whom were under five, and those nine children themselves. On 22 June 2017 the High Court held in the DA case that the benefit cap unlawfully discriminated against the children under two and their mothers, but on 15 March 2018 the Court of Appeal set aside the High Courts order. On 26 March 2018 Lang J formally dismissed the DS claimants claims but granted a leap frog certificate so that they could apply to appeal directly to the Supreme Court. The Supreme Court dismisses the appeal by a majority of 5 2. Lord Wilson (with whom Lord Hodge agrees) gives the main judgment. Lord Carnwath (with whom Lord Reed and Lord Hughes agree) and Lord Hodge (with whom Lord Hughes agrees) give concurring judgments. Lady Hale agrees with Lord Wilson on the principles, but not the outcome. Lord Kerr disagrees with him about both. Lord Wilson acknowledges that the cap has had a major impact on lone parent households with a child aged under five and in particular under two [22]. It does incentivise them to try to find work for at least 16 hours per week, but this was argued to fly in the face of the governments own policy of providing no free childcare for children under two and of replacing income support with job seekers allowance only after a lone parents youngest child has reached school age. The governments funding of Discretionary Housing Payments (DHPs) may alleviate the impact of the cap on such lone parent households but the evidence on this could be stronger. The cap saves little public money, but it can take the families it affects well below the poverty line. Living in poverty has a particularly adverse impact on the development of children under five [23] [34]. The caps reduction of benefits to well below the poverty line engages the claimant mothers and childrens right under Article 8 of the European Convention on Human Rights (ECHR) to respect for their family life [35] [37]. Each of the four classes of claimants has a separate status under Article 14 (for example, lone parents of children under two) on grounds of which status, they might complain they face discrimination in the enjoyment of that right [38] [39]. Their complaint, for which there is prima facie evidence, would be that despite being in a relevantly different situation from others subjected to the cap, they are treated the same way see Thlimmenos v Greece (2000) 31 EHRR 12 [40] [51]. The government must objectively justify this discrimination in this case, its failure to exempt the DA and DS cohorts from the cap [52] [54]. The test for whether the government can justify a discriminatory rule governing the distribution of welfare benefits is whether the rule is manifestly without reasonable foundation (MWRF). Once the government has put forward a foundation, the court will proactively examine whether it is reasonable [55] [66]. The United Nations Convention on the Rights of the Child (UNCRC) requires the public authorities to treat the childs best interests as a primary consideration. It forms no part of our domestic law, but aids interpretation of the ECHR, as to whether the government unjustifiably discriminated against the children and their parents in their enjoyment of their right under Article 8. The evidence shows that the government did, as a primary consideration, evaluate the likely impact of the cap on lone parents with young children [67] [87]. Furthermore, the governments belief that there are better long term outcomes for children in households where an adult works is a reasonable foundation for treating the DA and DS cohorts similarly to all others subjected to the cap [88]. Lord Carnwath and Lord Hodge both express reservations on the issue of status, but agree with Lord Wilson on the relevance of the UNCRC and also on the application of the MWRF test. They agree with him that the executive and Parliament both gave proper consideration to the interests of the children affected [89] [123], [124] [131]. Lady Hale agrees with Lord Wilson on the legal principles but not their application. She holds that the government failed to strike a fair balance between the very limited public benefits of the cap and the severe damage done to the family lives of young children and their lone parents if the parents must choose between working outside the home and not having enough for the family to live on [132] [157]. Lord Kerr considers the MWRF test to have derived from the margin of appreciation which is afforded to decisions of national authorities in the European Court of Human Rights. He would not import this approach into the national courts consideration of a measures proportionality. The steps in the proportionality analysis at the national level are well settled in the case law [164] [172]. The MWRF standard should not be applied as part of this analysis instead, the question should be whether the government has established that there is a reasonable foundation for its conclusion that a fair balance has been struck [173] [177]. In relation to the UNCRC, Lord Kerr does not agree with Lord Wilson that the key question is whether the government has acted in breach of Article 3 of the UNCRC [183]. A finding that Article 3 has not been breached does not establish the proportionality of the measure [186]. The evidence in this case shows that, while the impact on childrens rights was considered, it was not given a primacy of importance which Article 3 requires [196].

Cavendish v El Makdessi By an agreement, Mr Makdessi agreed to sell to Cavendish a controlling stake in the holding company of the largest advertising and marketing communications group in the Middle East. The contract provided that if he was in breach of certain restrictive covenants against competing activities, Mr Makdessi would not be entitled to receive the final two instalments of the price paid by Cavendish (clause 5.1) and could be required to sell his remaining shares to Cavendish, at a price excluding the value of the goodwill of the business (clause 5.6). Mr Makdessi subsequently breached these covenants. Mr Makdessi argued that clauses 5.1 and 5.6 were unenforceable penalty clauses. The Court of Appeal, overturning Burton J at first instance, held that the clauses were unenforceable penalties under the penalty rule as traditionally understood. ParkingEye v Beavis ParkingEye Ltd agreed with the owners of the Riverside Retail Park to manage the car park at the site. ParkingEye displayed numerous notices throughout the car park, saying that a failure to comply with a two hour time limit would result in a Parking Charge of 85. On 15 April 2013, Mr Beavis parked in the car park, but overstayed the two hour limit by almost an hour. ParkingEye demanded payment of the 85 charge. Mr Beavis argued that the 85 charge was unenforceable at common law as a penalty, and/or that it was unfair and unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999. The Court of Appeal upheld the first instance decision rejecting those arguments. The Supreme Court allows the appeal in Cavendish v El Makdessi and dismisses the appeal in ParkingEye v Beavis, thus upholding the validity of the disputed clauses in both cases. Lord Neuberger and Lord Sumption give a joint judgment, with which Lord Clarke and Lord Carnwath agree. Lord Mance and Lord Hodge write concurring judgments. Lord Toulson agrees that the appeal in Cavendish v El Makdessi should be allowed but dissents in ParkingEye v Beavis. The Legal Principles The penalty rule is an ancient, haphazardly constructed edifice which has not weathered well [3]. However, it is of long standing and a similar rule exists in all other developed systems of law. It also covers types of contract which are not regulated in any other way. It should not therefore be abolished, but neither should it be extended [36 40]. The fundamental principle is that the penalty rule regulates only the contractual remedy available for the breach of primary contractual obligations, and not the fairness of those primary obligations themselves [13]. The relevant contractual remedy typically stipulates payment of money, but it equally applies to obligations to transfer assets, or clauses where one party forfeits a deposit following its own breach of contract [14 18]. What makes a contractual provision penal? Lord Dunedins tests in Dunlop Pneumatic Tyre Company Ltd. v New Garage and Motor Company Ltd. [1915] AC 79 have too often been treated as a code. The speeches of the rest of the Appellate Committee, particularly Lord Atkinson, are at least as important. The validity of a clause providing for the consequences of a breach of contract depends on whether the innocent party can be said to have a legitimate interest in the enforcement of the clause. There is a legitimate interest in the recovery of a sum constituting a reasonable pre estimate of damages, but the innocent party may have a legitimate interest in performance which extends beyond the recovery of pecuniary compensation. The law will not generally uphold a contractual remedy where the adverse impact of that remedy significantly exceeds the innocent partys legitimate interest [18 30]. The concepts of deterrence and genuine pre estimate of loss are unhelpful. The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation [32]. Lord Mance agrees with that test. The first step is to consider whether any (and if so what) legitimate business interest is served and protected by the clause, and if so and secondly, whether the provision made for that interest is extravagant, exorbitant or unconscionable [152]. The penalty doctrine has been applied to clauses withholding payments, and transfers of moneys worth [154 159], and may be considered alongside relief against forfeiture [161]. It should not be abolished or restricted: its existence is justified by its longstanding invocation and endorsement in the United Kingdom, Europe and across common law jurisdictions [162 170]. Lord Hodge concurs, reviewing the authorities from England and Scotland and the historical development of the doctrine in Scots law. The doctrine only applies to secondary obligations arising out of a breach of contract, but is not confined to cases requiring the payment of money on breach. It applies to clauses withholding payments on breach, clauses requiring the party in breach to transfer property, and clauses requiring payment of a non refundable deposit if that deposit is not reasonable as earnest money (particularly where such a clause exceeds the percentage set by long established practice) [234 241]. The test is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the innocent partys interest in the performance of the contract. A clause fixing a level of damages payable on breach will be a penalty if there is an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach [255]. Lord Toulson agrees with Lord Hodges formulation of the test above, and with Lord Mance and Lord Hodge on the relationship between penalty and forfeiture clauses [294]. Application to Cavendish v El Makdessi The court concludes that neither clause 5.1 nor clause 5.6 are unenforceable penalty clauses, and accordingly allows the appeal. Clause 5.1 is a price adjustment clause. It is not a secondary provision but a primary obligation. The Sellers earn consideration for their shares by (amongst other things) observing the restrictive covenants. Whilst clause 5.1 has no relationship with the measure of loss attributable to the breach, Cavendish also had a legitimate interest in the observance of the restrictive covenants, in order to protect the goodwill of the Group generally. The goodwill of the business was critical to Cavendish and the loyalty of Mr Makdessi was critical to the goodwill. The court cannot assess the precise value of that obligation or determine how much less Cavendish would have paid for the business without the benefit of the restrictive covenants. The parties were the best judges of how it should be reflected in their agreement [73 75]. A very similar analysis applies to clause 5.6. It is also a primary obligation, and it could not be treated as invalid without rewriting the contract [83 88]. It was said to be penal because the formula excluded goodwill from the calculation of the payment price. It did not represent the estimated loss attributable to the breach. But it reflected the reduced consideration which Cavendish would have been prepared to pay for the acquisition of the business on the hypothesis that they could not count on the loyalty of Mr Makdessi [79 83]. Lord Mance, Lord Hodge and Lord Toulson concur on both clause 5.1 and clause 5.6 [171 187; 269 282; 292]. Application to ParkingEye v Beavis The court dismisses the appeal by a majority of six to one, and declares that the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999. Mr Beavis had a contractual licence to park in the car park on the terms of the notice posted at the entrance, including the two hour limit. The 85 was a charge for contravening the terms of the contractual licence. This is a common scheme, subject to indirect regulation by statute and the British Parking Associations Code of Practice. The charge had two main objects: (i) the management of the efficient use of parking space in the interests of the retail outlets and their users by deterring long stay or commuter traffic, and (ii) the generation of income in order to run the scheme [94 98]. Unlike in Cavendish v El Makdessi, the penalty rule is engaged. However, the 85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin [99]. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices [100 101]. The result is the same under the 1999 Regulations. Although the charge may fall under the description of potentially unfair terms at para. 1(e) of Schedule 2, it did not come within the basic test for unfairness in Regulations 5 and 6(1), as that test has been recently interpreted by the Court of Justice in Luxembourg [102 106]. Any imbalance in the parties rights did not arise contrary to the requirements of good faith, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets. The charge was no higher than was necessary to achieve that objective. Objectively, the reasonable motorist would have, and often did, agree to the charge [106 109]. Lord Mance and Lord Hodge both concur [188 214; 284 288]. Lord Toulson (dissenting) would have allowed the appeal, on the grounds that the clause infringes the 1999 Regulations, which reflect the special protection afforded to consumers under the European Directive on unfair terms in consumer contracts. The burden is on the supplier to show that the consumer would have agreed to the terms in individual negotiations on level terms. It is not reasonable to make that assumption in this case, and in any event ParkingEye had not produced sufficient evidence to that effect [309 315].

This appeal is about article 24(2) of the Brussels I Recast Regulation (Regulation (EU) No 1215/2012) (the Recast Regulation). This sets out special jurisdictional rules on the governance of corporations. The sixth appellant (Koza Altin) is a publicly listed company in Turkey. It is part of the Koza Ipek Group (the Group), formerly controlled by the second respondent (Mr Ipek) and his family. The first respondent (Koza Ltd) is a private company in England and a wholly owned subsidiary of Koza Altin. Mr Ipek alleges that he and the Group have been targeted unfairly by the Turkish government. In September 2015, he caused a number of changes to be made to Koza Ltds constitution and share structure to control his interests. Their validity and effect are in issue in these English proceedings. On 26 October 2015, in Turkish proceedings relating to a criminal investigation, a judge appointed certain individuals as trustees of Koza Altin and companies in the Group. Subsequently, he appointed the first to fifth appellants as trustees. On 19 July 2016, the trustees caused Koza Altin to serve a notice on the directors of Koza Ltd under section 303 of the Companies Act 2006 (the 2006 Act), requiring them to call a general meeting to consider resolutions for their removal and replacement with three of the trustees. The directors refused. On 10 August 2016, Koza Altin served a notice under section 305 of the 2006 Act to convene a meeting on 17 August. On 16 August, Mr Ipek and Koza Ltd made an urgent without notice application seeking an injunction to prevent the meeting. Injunctive relief was sought on two bases. First, that the notices of 19 July and 10 August 2016 (the notices) were void under section 303(5)(a) of the 2006 Act (the English company law claim). Second, that the notices were void because the English courts should not recognise the authority of the trustees to cause Koza Altin to do anything as a Koza Ltd shareholder, since they were interim appointees only and acting contrary to Turkish law, human rights and natural justice (the authority claim). On 16 August 2016, Snowden J granted interim injunctive relief. On 18 August, Mr Ipek and Koza Ltd issued a claim seeking declaratory and injunctive relief. Koza Altin and the trustees filed an acknowledgement of service and then an application contesting jurisdiction. Koza Altin also filed a Defence and Counterclaim to the English company law claim. In turn, Mr Ipek and Koza Ltd issued a strike out application, alleging lack of authority. Asplin J, in the High Court, dismissed the jurisdiction challenge on 17 January 2017. It was common ground that the English company law claim fell within article 24(2) of the Recast Regulation. Her assessment was that the authority claim was inextricably linked with that claim, which she considered the principal subject matter of the proceedings as a whole. Koza Altin and the trustees appealed. The Court of Appeal dismissed the appeal. It largely agreed with Asplin Js assessment and also rejected a distinct submission that the trustees are not necessary parties. The trustees and Koza Altin appeal to this Court. The issues are: (1) whether article 24(2) of the Recast Regulation confers jurisdiction on the English courts to determine the authority claim as against Koza Altin and (2) whether article 24(2) confers exclusive jurisdiction on the English courts to determine either the authority claim or the English company law claim as against the trustees. The Supreme Court unanimously allows the appeal. Lord Sales gives the sole judgment, with which all members of the Court agree. The basic scheme for allocation of jurisdiction under the Recast Regulation is that persons domiciled in a member state of the European Union should generally be sued in that member state (by article 4), but they may also be sued in another member state in certain situations, including in cases of exclusive jurisdiction specified under article 24 [20]. The cases of exclusive jurisdiction within article 24 reflect situations where there is an especially strong and fixed connection between the subject matter of a dispute and the courts of a particular member state [24]. The principle of exclusive jurisdiction supersedes the other principles underlying the Recast Regulation, including the domiciliary principle of jurisdiction (under article 4) and the principle of respect for party autonomy [25]. Given the scheme of the Recast Regulation, in principle, there should be only one correct application of article 24 in relation to a given claim [28]. The interpretation and application of article 24 cannot depend on an evaluative judgment in which different courts could reasonably take different views [28]. This is consistent with the objectives of setting highly predictable rules on the allocation of jurisdiction and avoiding inconsistent judgments on the same issue by the courts of different member states [29]. Decisions of the Court of Justice of the European Union, particularly Hassett v South Eastern Health Board (Case C 372/07) [2008] ECR I 7403 and Berliner Verkehrsbetriebe v JP Morgan Bank Chase Bank NA (Case C 144/10) [2011] 1 WLR 2087, show that article 24(2) is to be construed narrowly, as an exception to the general domiciliary principle, and should not be given an interpretation broader than required by its objective [31 32, 40 41]. These decisions also stress the importance of arriving at an interpretation which avoids the risk of inconsistent decisions [39]. Therefore, the interpretation of article 24(2) adopted by the Court of Appeal cannot be sustained. An evaluative assessment of proceedings relating to a specific claim may show that a particular aspect of the claim, involving an assessment of the validity of decisions of a companys organs, is so linked with other features of the claim that it is not the principal subject matter of those proceedings, as required by article 24(2). Where there are two distinct claims one, by itself, falling within article 24(2) and the other, by itself, not falling within article 24(2) it is not legitimate to maintain that by an overall evaluative judgment as to both claims taken together the second also falls within article 24(2), giving the English courts exclusive jurisdiction. A mere link between the two claims is not sufficient. [33 34] On issue (1), in this case, the English company law claim and the authority claim are connected in a sense, but they are distinct claims which are not inextricably bound up together. The English company law claim can be brought and made good on its own terms without regard to the authority claim, as can the authority claim. Assessing the authority claim as a distinct set of proceedings, clearly the principal subject matter does not comprise the validity of the decisions of the organs of a company with its seat in England. That interpretation and application of article 24(2) is acte clair. The English courts thus lack article 24(2) jurisdiction over Koza Altin and the trustees as to that claim. [35, 43] On issue (2), since article 24(2) does not cover the authority claim, the English courts lack article 24(2) jurisdiction in relation to the trustees with respect to that claim. The proceedings against the trustees are principally concerned with the authority claim. Article 24(2) jurisdiction over the English company law claim cannot extend to the trustees, who are not necessary parties to that claim. [45]

The Appellant is the landlord of a six storey terraced building at 51 Brewer Street, Soho, London W1. The Respondent is the current tenant under a lease granted in 1986. Its sub tenant, Romanys Ltd, runs an ironmongers shop from the basement and ground floor. Under clause 3(11) of the lease, the tenant may use any part of the building for (among other things) retail, offices or residential purposes, although the landlord gives no warranty that this usage will comply with planning rules. Clause 3(19) of the lease says the tenant cannot apply for planning permission without the landlords consent. It also says this consent must not be unreasonably withheld. This is known as a fully qualified covenant. Between 2013 and 2015, the sub tenant converted the first, second, third and fourth floors into self contained flats. The first and second floors were previously used as storage and office space, and the existing planning permission did not allow residential use. The former landlord (the Appellants predecessor in title) reserved its position on a planning application until the works were completed. At that point, the tenant sought the former landlords consent to apply for planning permission to use those two floors residentially. The former landlord believed a change of use would damage its own financial interests. The majority of the building would become residential which, in turn, would give the tenant the chance to compulsorily acquire the freehold under the Leasehold Reform Act 1967 (a process called enfranchisement.) An increased risk of enfranchisement would devalue the landlords property. So the landlord refused consent to make a planning application for increased residential use. The tenant said this was unreasonable and challenged the landlords decision in the County Court. HHJ Collender agreed with the tenant, as did the Court of Appeal (Sir Terence Etherton MR, McCombe LJ and Lindblom LJ.) The landlord now appeals to the Supreme Court. The key question is whether the trial judge was right to find the landlord acted unreasonably in withholding consent. The Supreme Court allows the appeal by a majority of three to two. Lord Briggs gives the main judgment with which Lord Carnwath and Lord Hodge agree. Lady Arden and Lord Wilson each give a dissenting judgment. The circumstances in which a landlord may be asked to give consent under a fully qualified covenant are infinitely variable. In every case, the reasonableness of the landlords decision will be a question of fact and degree. This must be assessed by reference to the facts at the date of the tenants request, not what the parties contemplated when the lease was granted [27] [32]. The real issue in this case is whether the courts below were correct in construing the lease in such a way as to prevent the landlord from having regard to an increased risk of enfranchisement from residential use. Three reasons have been advanced in support of that conclusion [33] [34]. The first reason (adopted by the tenants counsel before the Supreme Court) is that refusal of consent under clause 3(19) is inconsistent with the landlords grant of rights under clause 3(11). The majority rejects this argument, holding that the two clauses must be read together. Under clause 3(19) the tenant must act consistently with planning legislation; so clause 3(11) only allows residential use of the building to the extent that it is permitted by the planning regime [34]; [36]. The second reason (adopted by HHJ Collender) is that clause 3(19) serves a limited purpose of protecting the landlord from liability which might arise under new planning conditions. But there is nothing to suggest that there is only one purpose for the existence of clause 3(19). The right approach is to decide whether the landlords refusal serves a purpose which is sufficiently connected with the landlord and tenant relationship: [37]. The third reason (adopted by the Court of Appeal) is that it makes no sense to allow the landlord to refuse planning permission to avoid the risk of enfranchisement, because a third party could apply for the same planning permission free of any such restraint and with the same adverse consequences to the landlord [18]; [34]. It is true that the landlord was vulnerable to enfranchisement if a third party sought planning permission. But, as a matter of fact, no third party did apply for planning permission. At the time of the tenants request, the landlords ability to refuse consent under clause 3(19) gave the landlord a real measure of protection against enfranchisement [38]. So the Court of Appeal made an error of law which requires the Supreme Court to consider the question of reasonableness for itself [39]. The Court considers that, on the undisputed facts, the landlord was acting reasonably in protecting the value of its property [40] [42]. Dissenting judgments of Lady Arden and Lord Wilson Lady Arden and Lord Wilson both rely on clause 3(11) which suggests the tenant may use the building for residential purposes. In their judgment, this cannot be cut down by the landlords power to refuse consent to a planning application [44]; [47]; [55] [60]. If so, this effectively rewrites clause 3(11) [61] [62]. Lady Arden reads the authorities as establishing that the court should make an assessment of all the circumstances to determine whether the consent was unreasonably refused. Here, the parties cannot have intended that the landlord should be able to protect itself against the risk of increased enfranchisement by refusing consent to a planning application for increased residential use [48] [50]. Lord Wilson emphasises that reasonableness is fact sensitive and considers that the Supreme Court has no reason to depart from the trial judges determination [63].

These two joined appeals raise the question of whether a property used wholly for commercial purposes may qualify as a house for the purposes of legislation governing the right to leasehold enfranchisement (i.e. the right of a lessee in certain circumstances compulsorily to acquire the freehold of the building from his/her landlord) [1]. In the Hosebay case, the respondents owned the leases of three buildings in central London which had originally been built as separate houses as part of a late Victorian terrace [10]. The leases restricted the use of the houses to use for residential purposes, but on the date when the respondent served notices on the appellants under s.8 of the Leasehold Reform Act 1967 (the 1967 Act) seeking compulsorily to acquire the freehold of the buildings, they were being used wholly as a self catering hotel [10,13]. In the Lexgorge case, the respondent owned the lease of a five storey building in central London also originally built as a house [16]. The terms of the lease restricted the use of the upper two floors of the building to residential flats [18]. On the date when the respondent served a notice under s.8 of the 1967 Act, the building was used wholly for office purposes [17]. The building was listed as a building of special architectural or historic interest, and English Heritages records described it as a terraced house [18]. The issue in both appeals was whether the properties constituted houses within the meaning of s.2(1) of the 1967 Act. This raised two separate but overlapping questions: (i) Were the buildings designed or adapted for living in? (ii) Were they houses reasonably so called? [8] Both elements of the definition were disputed by the appellants in the Hosebay case, but only second element of the definition was disputed by the appellant in the Lexgorge case [8]. The judge at first instance in each case concluded that the buildings were houses for the purposes the 1967 Act, and the Court of Appeal reluctantly upheld those decisions [1,2]. The Supreme Court unanimously allows both appeals. It holds that neither property constituted a house for the purposes of the 1967 Act on the date when the relevant statutory notice was served. The judgment of the Court is given by Lord Carnwath. The decision of the Court of Appeal was not the result intended by Parliament when, pursuant to the Commonhold and Leasehold Reform Act 2002, it removed the requirements of residence from the 1967 Act [3 5]. As far as possible, an interpretation of the 1967 Act which has the effect of conferring rights on lessees going beyond those which Parliament intended to confer should be avoided [6]. The first element of the definition of house in s.2(1) of the 1967 Act (i.e. designed or adapted for living in) looks to the identity or function of the building based on its physical characteristics, the second element (i.e. a house reasonably so called) ties the definition to the primary meaning of house as a single residence, as opposed to, for example, a hostel or a block of flats [9]. Both parts of the definition need to be read in the context of a statute which is about houses as places to live in, not about houses as pieces of architecture or features in a street scene [9]. As to the first part of the definition of house in s.2(1) of the 1967 Act, the words designed and adapted do not constitute alternative qualifying requirements, despite the literal meaning of the provision [34]. Context and common sense argue strongly against a definition turning principally on historic design, if that has long been superseded by adaptation to some other use [34]. The words is adapted in s.2(1) refer to the present state of the building and do not imply any particular degree of structural change [34,35]. As to the second part of the definition, the external and internal physical appearance of a building should not be treated as determinative of whether it is a house reasonably so called , nor should the terms of the lease be treated as a major factor [41]. The buildings in the Hosebay case were not houses reasonably so called [43]. The fact that they might look like houses and might be referred to as houses for some purposes was not sufficient to displace the fact that their use was entirely commercial [43]. It was unnecessary to decide whether the buildings were designed or adapted for living in [44]. The building in the Lexgorge case was also not a house reasonably so called because it was used wholly for office purposes [45]. The fact that it was designed as a house and is still described as a house for many purposes (such as architectural histories) was beside the point [45].

The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].

Impact Funding Solutions (Impact) entered into a disbursements funding master agreement (DFMA) with solicitors, Barrington Support Services Ltd (Barrington), by which Impact, by entering into loan agreements with Barringtons clients, provided funds to Barrington to hold on behalf of its clients and to use to make disbursements in the conduct of its clients litigation in pursuit of damages for industrial deafness. Barrington failed to perform its professional duties towards its clients in the conduct of the litigation, by not investigating the merits of their claims adequately and through the misapplication of funds provided by Impact, breaching their duty of care to them. Barrington thereby put itself in breach of a warranty in its contract with Impact. Barringtons clients were not able to repay their loans. Impact sought to recover from Barrington the losses which it suffered on those loans by seeking damages for the breach of the warranty. On 30 March 2013, the High Court awarded Impact damages of 581,353.80, which represented the principal elements of the loans that would not have been made if Barrington had not breached its contract with Impact. On Barringtons insolvency, Impact seeks in this action to recover those losses from Barringtons professional indemnity insurers AIG Europe Ltd (AIG), under the Third Parties (Rights against Insurers) Act 1930. The issue in the appeal concerns the construction of an exclusion clause in Barringtons professional indemnity policy (the Policy). The relevant part of the exclusion clause provided that This policy shall not cover Loss in connection with any Claim or any loss: arising out of, based upon, or attributable to any breach by any Insured of terms of any contract or arrangement for the supply to, or use by, any Insured of goods or services in the course of providing Legal Services. The question is whether the DFMA falls within the scope of this exclusion clause, and as a result, the Policy excludes cover in relation to Impacts cause of action. On 13 December 2013, the High Court held that Impacts claim against AIG for an indemnity failed. In a judgment dated 3 February 2015 the Court of Appeal allowed Impacts appeal. AIG now appeals to the Supreme Court. The Supreme Court allows AIGs appeal by a majority of 4 to 1. Lord Hodge gives the lead judgment (with which Lord Mance, Lord Sumption and Lord Toulson agree). Lord Toulson gives a concurring judgment (with which Lord Mance, Lord Sumption and Lord Hodge agree). Lord Carnwath gives a dissenting judgment. Questions of Construction The general doctrine that exemption clauses should be construed narrowly, has no application to the relevant exclusion in this Policy. The extent of the cover in the Policy is therefore ascertained by construction of all its relevant terms without recourse to a doctrine relating to exemption clauses [7]. The insurance policy The boundaries of AIGs liability are ascertained by construing the broad statement of cover and also the broad exclusions in the context of the regulatory background [18]. Two questions arise: (i) whether the contract between Impact and Barrington was a contract by which Impact supplied services to Barrington in the course of Barringtons provision of legal services; and (ii) whether it is necessary to imply a restriction into the relevant Policy exclusion clause limiting its effect in order to make it consistent with the purpose of the Policy [18]. The DFMA and the resulting loans to Barringtons clients were a service which Impact provided to Barrington for four reasons. Firstly, Barrington contracted as a principal with Impact and not as agent for its clients. Secondly, Barrington clearly obtained a benefit from the funding of its disbursements. Thirdly, this was not an incidental or collateral benefit to Barrington derived from a service provided to its clients, but was part of a wider arrangement. Fourthly, it was a service for which Barrington paid the administration fee, undertook the onerous obligation to repay Impact if a client breached the credit agreement, entered into the obligation to indemnify Impact and gave the warranty to Impact on which Impact won its claim for damages against Barrington [29]. Therefore, the DFMA was a contract for the supply of services to Barrington [30, 46]. That conclusion accords well with the essential purpose of the Solicitors Indemnity Insurance Rules 2009 to protect the section of the public that makes use of the services of solicitors, the relevant clause in the 2009 Rules being substantially the same as the exclusion clause [46]. There is no basis for implying additional words into the exclusion in order to limit its scope. Marks & Spencer plc v BNP Paribas Securities Services [2015] 3 WLR 1843 confirmed that a term would be implied into a detailed contract only if, on an objective assessment of the terms of the contract, the term to be implied was necessary to give the contract business efficacy or was so obvious it went without saying [31]. Impacts cause of action under the DFMA is an independent cause of action. Excluding such a claim creates no incoherence in the Policy. Indeed, it would be consistent with the purpose of the Policy of ensuring that protection was provided to the clients of solicitors if such a claim were excluded [32]. In a dissenting judgment, Lord Carnwath would have dismissed the appeal, finding that the essential service provided by the DFMA was the provision of loans to Barringtons clients, not to Barrington. It may have had incidental benefits to Barrington, but that was not the essential purpose of the contract, nor was it a service comparable in any way to the supply of good or services for use in the practice [56].

The appellant is a Jamaican national who arrived in the United Kingdom on 9 October 1998 when he was seven years old. He has several criminal convictions, including two robberies that triggered deportation proceedings. On 17 July 2013, a deportation order was issued. He appealed to the First tier Tribunal (Immigration and Asylum Chamber) (FTT) against his proposed deportation, based on a claimed right to respect for his private life in the UK. It was accepted at the time that there was no family life in play. His appeal was dismissed, and he was refused permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) (UT). He exhausted his rights of appeal on 1 May 2015. On 13 May 2015, the appellants previous solicitors made further submissions to the Secretary of State, focusing on the fact that his partner at the time was pregnant. The submissions did not explicitly request that the deportation order be revoked, nor did they refer to human rights. The Secretary of State treated the representations as an application to revoke the deportation order on the basis that it would breach Article 8 of the ECHR. In a letter dated 23 June 2015, the Secretary of State concluded that deportation would not breach Article 8, refused to revoke the deportation order and decided that the submissions did not amount to a fresh human rights claim under paragraph 353 of the Immigration Rules (rule 353). The appellants son was born on 26 July 2015. The appellant made further submissions to the Secretary of State on 28 July 2015 regarding the birth of his son and providing documentation from the hospital. In a letter dated 31 July 2015, the Secretary of State again concluded that deportation would not breach Article 8 and that the further submissions did not amount to a fresh claim. The appellant appealed against the decision of 31 July 2015 but the FTT declined jurisdiction on the basis that there was no right of appeal against the decision. The UT dismissed his application for judicial review of the Secretary of States decision that the further representations were not a fresh claim and the FTTs decision that he had no right of appeal. On 4 May 2017, the Court of Appeal dismissed his appeal. The Supreme Court dismisses the appeal. Lord Lloyd Jones gives the sole judgment with which the other Justices agree. The question in this appeal is: where a person has already had a human rights claim refused and there is no pending appeal, do further submissions that rely on human rights grounds have to be accepted by the Secretary of State as a fresh claim in accordance with rule 353 if a decision in response to those representations is to attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) [1]? The appellant raises two principal arguments for why they do not. 1. BA (Nigeria) The appellant submits that the line of authority beginning with R v Secretary of State for the Home Department Ex p Onibiyo [1996] QB 768, which established that it was for the Secretary of State to decide whether further submissions constituted a fresh claim giving rise to a right of appeal, did not survive the Supreme Courts decision in BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7 [26]. The Court disagrees as BA (Nigeria) was limited to cases where the further submissions have been rejected and there was an appealable decision [50]. Its reasons are as follows: (1) BA (Nigeria) established that, where the Secretary of State receives further submissions on which he makes an immigration decision within section 82 of the 2002 Act, in the absence of certification there will be an in country right of appeal. Onibiyo and rule 353, by contrast, address a prior issue of whether there is a claim requiring a decision at all [46]. (2) The 2002 Act, particularly the powers of certification under sections 94 and 96, does not render Onibiyo and rule 353 redundant. The effect of rule 353 is that no right of appeal ever arises, rather than only to limit to an out of country appeal, and it operates at a prior stage to section 94. Section 96(1) addresses a different aspect of renewed claims, as it applies where a person relies on a matter that could have been raised in an earlier appeal but has no satisfactory reason for not doing so [47]. (3) Parliament did not intend the 2002 Act to provide a comprehensive code for dealing with repeat claims or for rule 353 no longer to be effective. There was no attempt to repeal rule 353s predecessor and Parliament has approved subsequent amendments to the Immigration Rules that did not delete rule 353. Moreover, following the amendment of the 2002 Act in 2014, rule 353 was amended to ensure it applies to human rights claims and protection claims, which suggests it was still effective [48]. (4) The appellants broad reading of BA (Nigeria) is inconsistent with ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, in which the House of Lords held that the Secretary of State had erred in applying section 94(2) of the 2002 Act rather than rule 353 in considering further submissions. BA (Nigeria) merely decided that rule 353 has no part to play once there is an appealable immigration decision. It contains no express statement that it intends to overrule or depart from ZT (Kosovo), and it is extremely improbable that that was the intention [49]. 2. 2014 Amendments to the 2002 Act The appellant submits that the amendments to the 2002 Act effected by the Immigration Act 2014 fundamentally changed the operation of the statutory scheme, with the result that rule 353 no longer applies [58]. The Court rejects these submissions for the following reasons: (1) Referring to rule 353 to determine if subsequent submissions are a human rights claim does not result in the same words bearing different meanings. In BA (Nigeria) there was in each case a human rights claim, but there was a right of appeal against an immigration decision, so the interpretation of human rights claim did not need to refer to rule 353. In this case, the issue is the prior question of whether there is a claim at all [59]. (2) The 2014 amendments limit appeals to where there has been a refusal of a protection claim or a human rights claim, or the revocation of protection status. The structure and operation of section 82 remains unchanged. The amended section 82 does not relieve a person of the burden of establishing that the Secretary of State has refused a valid human rights claim [60]. (3) Parliament is presumed to legislate in the knowledge of and having regard to relevant judicial decisions. In the present context, the Court of Appeal in ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926 had provided an authoritative explanation of the effect of BA (Nigeria). Parliament is therefore assumed to have legislated in light of a consistent line of authority establishing that a purported human rights claim short of the threshold of a fresh claim under rule 353 was not a claim at all. There is nothing in the 2014 amendments to suggest Parliament intended to enable repeated claims raising human rights issues to generate multiple appeals [62]. Therefore, human rights claim in section 82 of the amended 2002 Act means an original human rights claim or a fresh human rights claim within rule 353. As a result, the Secretary of States response to the appellants further submissions did not attract a right of appeal [64].

In 1974, there was much terrorist activity in Northern Ireland, a large part of which was generated by the Provisional Irish Republican Army (PIRA). On 13 June 1974, members of the Life Guards regiment of the British Army, under the command of the appellant, found a group of men loading material into a vehicle. A firefight ensued and arms and explosives were discovered in the vehicle. On 15 June 1974, a Life Guards patrol, also led by the appellant, was travelling on a road about 3.5 miles from the location of the firefight. They saw a man, Mr Cunningham, who appeared startled and confused. Mr Cunningham climbed a gate into a field and ran towards a fence. The appellant ordered the patrol to halt and three members, including the appellant, pursued Mr Cunningham. After shouting a number of commands to stop, the appellant and another soldier fired shots and Mr Cunningham was killed. It later transpired that he had limited intellectual capacity, that he was unarmed, and that he had been running towards his home. In 2015, the appellant was charged with the attempted murder of Mr Cunningham and with attempting to cause him grievous bodily harm. On 20 April 2016, the Director of Public Prosecutions (DPP) issued a certificate pursuant to section 1 of the Justice and Security (Northern Ireland) Act 2007 (the Act) directing that the appellant stand trial by a judge sitting without a jury. Section 1(2) of the Act provides that the DPP may issue such a certificate if he (a) suspects that any of the relevant conditions are met and (b) is satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. Condition 4 is defined by section 1(6) of the Act: Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons. Section 7(1) of the Act reads: No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision or purported decision of the Director of Public Prosecutions for Northern Ireland in relation to the issue of a certificate under section 1, except on the grounds of (a) dishonesty, (b) bad faith, or (c) other exceptional circumstances (including in particular exceptional circumstances relating to lack of jurisdiction or error of law). The appellant was not made aware of the issue of the certificate until 5 May 2017. He sought to challenge the DPPs decision to issue the certificate by way of judicial review. He was unsuccessful before the Divisional Court, which certified the question of whether a true construction of condition 4 included a member of the armed forces shooting a person he suspected of being a member of the IRA. The appellant also seeks to challenge the DPPs decision on procedural grounds, arguing that he ought to have been provided with the reasons that the DPP was minded to issue a certificate and with the material on which his consideration of that question was based. He also claims that he should have been given the opportunity to make representations on whether a certificate should have been issued in advance of any decision on the matter. The Supreme Court unanimously dismisses the appeal. It holds that a true construction of condition 4 does include a member of the armed forces shooting a person he suspected of being a member of the IRA and it rejects the procedural challenges advanced by the appellant. Lord Kerr writes the judgment. The breadth of the power under section 1 of the Act is immediately apparent. The DPP need only suspect that one of the stipulated conditions is met and that there is a risk that the administration of justice might be impaired if there was a jury trial. These decisions can be of the instinctual, impressionistic kind. Whilst the DPP must be able to point to reasons for his decision, it may be based on unverified intelligence or suspicions, or on general experience, rather than on hard evidence [13]. The circumstances covered by condition 4 are also extremely wide. This covers offences committed to any extent (even if indirectly) in connection with or in response to religious or political hostility of one person or group of persons. The PIRA campaign in Northern Ireland was based on that organisations political hostility to continuing British rule and the incident which occurred a few days before Mr Cunningham was killed bore all the hallmarks of a PIRA operation. When this is considered, it is entirely unsurprising that the DPP should have concluded that the offences with which the appellant is charged were connected (directly or indirectly) with or in response to the political hostility of PIRA members against those who believe that Northern Ireland should remain a part of the UK [14]. The other exceptional circumstances referred to in section 7(1)(c) of the Act are not specified, but they must take their flavour from the preceding provisions and the succeeding words which particularise lack of jurisdiction and error of law. These are clear indications that the full panoply of judicial review superintendence is generally not available to challenge decisions under section 1 [16]. There is no need to consider the Explanatory Notes to the Act or the ministerial statements referred to by the appellant because the language of the relevant statutory provisions is clear [20] & [24]. Trial by jury should not be assumed to be the unique means of achieving fairness in the criminal process. Trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means, where those circumstances obtain, of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.[34]. Further, although trial by jury has been referred to as a right, it is not an absolute right. Moreover, the right has been restricted by the express provisions of the Act and must yield to the need to ensure that a trial is fair [37]. Although it has been argued that the DPP erred in stating that section 1(1) should be broadly interpreted, this is irrelevant so long as (a) he acted within his powers and (b) any misapprehension was immaterial to the decision he took. On the facts of this case, it is clear that the DPP was bound to have made the decision even if he had considered that section 1 had to be construed narrowly [44]. As to whether he acted within his powers, the DPP took proper steps to allow him to consider whether he suspected that condition 4 was met [47]. He also addressed whether there was a risk that the administration of justice would be impaired and his conclusion was entirely unsurprising [48]. As to the procedural argument, section 7 expressly provides that a judicial review challenge is only admissible on grounds of bad faith, dishonesty, or other exceptional circumstances. This is not a case of bad faith or dishonesty [54]. Whilst the appellant claims that this case falls into the exceptional circumstances category because of the fundamental right to a jury trial, the fundamental right is to a fair trial. Whilst there is a right to a jury trial, this cannot make this case an exceptional one, particularly in the context of a statute whose purpose is to prescribe the circumstances in which someone can be denied the right to a jury trial [55]. There are no circumstances in this case which could be said to be exceptional within the terms of section 7(1)(c) of the Act [62].

Cameron Mathieson was born on 19 June 2007 and sadly passed away on 12 October 2012. He was diagnosed with cystic fibrosis and Duchenne muscular dystrophy soon after he was born, and his parents went to great lengths to meet his exceptional and complex care needs during his short life [3]. They received, on his behalf, the state benefit known as Disability Living Allowance (DLA). Camerons disabilities were so severe that he was entitled to the highest rates of the care component and the higher rate of the mobility component of DLA [8 10]. On 4 July 2010 Cameron was admitted to Alder Hey Hospital in Liverpool for symptoms of chronic bowel obstruction. He remained there as an inpatient until 4 August 2011 [4]. During his stay one or other of his parents was present in the hospital at all times. They remained his primary caregivers, including administering twice daily physiotherapy, giving nebulised antibiotics, feeding him via a nasogastric tube, and changing his stoma bag up to eight times a day [5]. The additional costs incurred by the family over the duration of Camerons hospital admission, including the costs of travel from their home in Warrington, amounted to around 8,000 [6]. Regulations 8(1), 10, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991 (the 1991 Regulations) together provide that a child under 16 will cease to receive DLA after the 84th day of his or her admission as an inpatient in an NHS hospital [12]. In the case of a person aged 16 or over, DLA is withdrawn after the 28th day. On 3 November 2010 the Secretary of State decided that Camerons DLA should be suspended effective from 6 October 2010 on grounds that he had been an inpatient at Alder Hey for more than 84 days [13]. The Mathieson family continued to receive other state benefits including child benefit, child tax credit, and income support [15]. However, the suspension of DLA from October 2010 to August 2011 amounted to a loss of about 7,000 [14]. Cameron challenged the Secretary of States decision in the First tier Tribunal (Social Security and Child Support), which dismissed his appeal on 10 January 2012. After Cameron died, his father continued the proceedings in his stead [2].The Upper Tribunal (Administrative Appeals Chamber) dismissed Mr Mathiesons further appeal on 15 January 2013, as did the Court of Appeal on 5 February 2014. The Supreme Court unanimously allows the appeal, sets aside the Secretary of States decision and substitutes the decision that Cameron Mathieson was entitled to continued payment of DLA with effect from 6 October 2010 [48]. Lord Wilson (with whom Lady Hale, Lord Clarke and Lord Reed agree) gives the leading judgment. Lord Mance (with whom Lord Clarke and Lord Reed agree) gives a concurring judgment. Camerons father, Mr Mathieson, in taking forward the appeal contended that the 84 day rule breached Article 14 of the European Convention on Human Rights (ECHR), which provides: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status [16]. It was conceded by the Secretary of State that the provision of DLA falls within the scope of Article 1 of Protocol 1 ECHR, which protects the peaceful enjoyment of possessions [18]. Therefore, the government is obliged to administer DLA without discrimination on any of the identified grounds [17]. The ground relied upon by Mr Mathieson was other status, namely that of being a severely disabled child in need of lengthy inpatient hospital treatment [19]. Lord Wilson concludes that such status falls within the grounds of discrimination prohibited by Article 14: disability has been found to be a prohibited ground, and discrimination between disabled persons with different needs equally engages Article 14 [23]. Lord Mance, in his concurring judgment, prefers to formulate the relevant status as being that of a child in an NHS hospital for over 84 days, rather than a private hospital [60]. Lord Wilson goes on to consider whether the difference in treatment in withdrawing DLA from children in hospital for longer than 84 days was justified, or whether it amounted to unlawful discrimination. A difference in treatment on a prohibited ground will be justified if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised [24]. In the area of welfare benefits, a court will not interfere with the governments approach unless the rule applied is manifestly without reasonable foundation [26]. Neither will a bright line rule be invalidated because hard cases fall on the wrong side of it, provided that the rule is beneficial overall [27]. In this case, the governments aim in imposing the 84 day rule was to avoid overlapping provision to meet disability related needs [28]. However, the court was presented with evidence showing that the disability related needs of children in hospital are far from being entirely met by the NHS. Since the 1980s, parental participation in the care of a child in hospital has been increasingly encouraged and ultimately become the norm [30]. An online survey of families with disabled children showed that almost all carers provide the same or a greater level of care when their child is in hospital rather than at home, and bear increased costs [33]. The Citizens Advice Bureau confirmed that parents are positively required to take an active part in their childs medical management in hospital, and that financial difficulties arise due to expenditure on travel, meals and childcare for siblings, together with loss of parental earnings [35]. This evidence (to which the Secretary of State did not adduce any material in response) demonstrated that the Mathiesons situation was not a hard case; rather, the personal and financial demands made on the substantial majority of parents with disabled children in hospital are at least no less than when they care for them at home [36]. Therefore, state provision for disabled children in hospital is not overlapping to an extent which justifies the suspension of DLA after the 84th day. This conclusion is in harmony with the rights afforded to Cameron under international law by the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities [44]. Although Mr Mathieson invites the court to disapply the provisions for the suspension of DLA under the 1991 Regulations in the case of children, the court declines to do so, leaving it to the Secretary of State to decide what measures should be taken to avoid the violation of the rights of disabled children such as Cameron following their 84th day in hospital [49].

Normally, when a car distributor buys a demonstrator car from the manufacturer, it pays VAT on the full wholesale price (input tax). Then, when it eventually sells the car to a customer, it collects VAT on the full retail price (output tax). It accounts to HMRC for the output tax it has collected less the input tax it has paid. The Pendragon Group, the largest car sales group in Europe, used a scheme devised by KPMG to reduce its VAT liability on two occasions in late 2000 and early 2001. The KPMG scheme exploited three exceptions to the normal incidence of VAT so that Pendragon would only have to account for VAT in respect of the difference between the wholesale purchase price and the retail sale price of its demonstrator cars. The scheme worked as follows. Step 1: Pendragon bought cars from a wholesaler, then sold them to four captive leasing companies (CLCs). Pendragon paid input tax on the wholesale purchase price but recovered it by accounting for output tax received when the cars were sold to the CLCs. Step 2: The CLCs immediately leased the cars to Pendragon dealerships. The CLCs paid input tax on the purchase of the cars from Pendragon but recovered it by accounting for output tax paid by the Pendragon dealerships on their rental payments under the leases. Step 3: The CLCs then assigned the leases and their title in the cars to the offshore bank Soc Gen Jersey (SGJ). They received approximately 20m (financed by SG London, which received a further assignment of the assets as security). The assignment to an offshore bank was not a supply for VAT purposes and so no VAT was payable. Step 4: Some 30 to 45 days later, SGJ transferred as a going concern the lease agreements and title in the cars to Captive Co 5. It also sold as a business the hire of cars said to have been carried on by SGJ. The total consideration exceeded 18m, with 100,000 in respect of goodwill. The sale of the business as a going concern was not a supply for VAT purposes and so no VAT was payable. Step 5: The demonstrator cars were sold to customers by the dealerships, acting as agents for Captive Co 5. Customers paid VAT only on Captive Co 5s profit on the sale, rather than on the total sale price, under the profit margin scheme, which is available under domestic law where the goods were acquired as part of a business transferred as a going concern. It is common ground that the scheme technically worked, in that the transactions at steps 3 and 4 satisfied the conditions for exemption from VAT, and the transaction at step 5 satisfied the conditions for the application of the margin scheme. However, VAT is an EU tax (governed at the time by the Sixth Directive) and subject to the EU law principle of abuse of law. The First Tier Tribunal held that the scheme was not abusive. The Upper Tier Tribunal held that it was. The Court of Appeal restored the decision of the First Tier Tribunal. HMRC now appeals to the Supreme Court. It argues that the scheme was abusive and that Pendragon should have to pay to it the VAT avoided under the scheme. The Supreme Court unanimously allows the appeal and holds that the scheme was abusive. Lord Sumption, with whom all members of the Court agree, gives the leading judgment. Lord Carnwath adds further comments on the role of the Upper Tribunal. In Halifax plc v Customs and Excise Commissioners (Case C 255/02) [2006] STC 919, the Grand Chamber said that, in the sphere of VAT, an abusive practice can be found to exist only if two conditions are met. [7] The first condition is that it must be shown that the transactions concerned result in a tax advantage which would be contrary to the purpose of the conditions laid down in the relevant EU Directive and implementing national legislation. One must assume that it is the purpose of the VAT Directives to accommodate normal commercial transactions. [11] This condition is satisfied. The purpose of VAT is to tax consumption. The direct purpose of the margin scheme is to grant relief to traders who have acquired goods from a supplier who had no right to deduct input tax in respect of their own acquisition of them. The indirect purpose of the margin scheme is thereby to avoid double taxation, since second hand goods may already have been the subject of a net VAT charge at some earlier stage in their history. [14 20] In this case, a system designed to prevent double taxation has been exploited so as to prevent any taxation at all. [30] The fact that the margin scheme will sometimes apply in cases where there was no earlier net VAT charge is simply the consequence of designing a workable scheme. [22 23] Even if the margin scheme is made available by domestic rather than EU law, the underlying purpose of the margin scheme remains the same, and general principles of EU law, including the abuse of law principle, still apply; in any event, it must have been intended that the abuse of law principle should apply even as a matter of English domestic law. [24 29] The second condition is that it must be objectively apparent that the essential aim of the transactions is to obtain a tax advantage. Even if a transaction has a legitimate commercial purpose, it is open to challenge if the accrual of a tax advantage constitutes its principal aim. [12] The scheme should be assessed as a whole. [13] This condition is also satisfied. It is not in itself objectionable that Pendragon chose to enter into a transaction with an offshore bank. However, it was essential to the scheme that Captive Co 5 acquire the cars as part of a business as a going concern, and for that to be possible, it was essential that the transferor of the business have acquired the cars by assignment. These steps were manifestly included for the sole purpose of reducing VAT liability. [31 34] Abusive transactions must be redefined so as to re establish the situation which would have prevailed absent the abusive practice. [8] This transaction should be redefined by stripping out the five captive companies, so that the dealerships will be accountable for VAT on the full second hand price. [41 42] The Court of Appeal held that the Upper Tribunal exceeded its proper appellate role by substituting its own decision for a decision of the First Tier Tribunal based on an evaluation of competing factors. In Lord Sumptions opinion, the Upper Tribunal was entitled to intervene because the First Tier Tribunal erred in law. [35 40] Lord Carnwath adds that the Tribunals, Courts and Enforcement Act 2007 now provides that, where the Upper Tribunal finds that the First Tier Tribunal has erred in law, it may itself remake the decision, including by making further findings of fact. It was appropriate for the Upper Tribunal to do so in this case in order to give guidance on the abuse principle. It was their decision rather than that of the First Tier Tribunal which should have been the main focus of the Court of Appeals consideration. [44 51]

From 1982 to 1986, Professor Shanks (the appellant) was employed by Unilever UK Central Resources Ltd (CRL). CRL employed the UK based research staff of the Unilever group of companies (Unilever). It was not a trading company and was a wholly owned subsidiary of Unilever plc. While employed by CRL, Professor Shanks conceived an invention, the rights to which belonged to CRL from the outset under the Patents Act 1977 (the 1977 Act). CRL assigned those rights to Unilever plc for 100. Unilever was later granted various patents relating to the invention (the Shanks patents). Over time, Unilever derived a net benefit from the Shanks patents of approximately 24.3 million. On 9 June 2006, Professor Shanks applied for compensation under section 40 of the 1977 Act on the basis that the Shanks patents had been of outstanding benefit to CRL and that he was entitled to a fair share of that benefit. On 21 June 2013, the hearing officer acting for the Comptroller General of Patents (the Comptroller) found that, having regard to the size and nature of Unilevers business, the benefit provided by the Shanks patents fell short of being outstanding. Professor Shanks appealed to the High Court and Mr Justice Arnold dismissed the appeal. Professor Shanks then appealed to the Court of Appeal. That appeal succeeded in part, but the Court of Appeal found that Professor Shanks was not entitled to compensation. Professor Shanks now appeals to the Supreme Court. The Supreme Court allows the appeal. Lord Kitchin gives the sole judgment, with which the other Justices agree. An employee who makes an invention which belongs to his or her employer from the outset and for which a patent has been granted is entitled to compensation if he or she establishes: first, that the patent is, having regard among other things to the size and nature of the employers undertaking, of outstanding benefit to the employer; and secondly, that, by reason of these matters, it is just that he or she be awarded compensation [30]. At least in the ordinary case, Parliament intended the term employer to mean the inventors actual employer [31]. The relevant benefit is the benefit the inventors actual employer has derived or may reasonably be expected to derive from the patent, or from the assignment or grant to a person connected with him of any right in the invention, patent or patent application [32]. In assessing the benefit derived or expected to be derived by an employer from an assignment of the patent to a person connected with the employer (the circumstances of this case), the court must consider the position of the actual employer and the benefit which the assignee has in fact gained or is expected to gain [33]. Previous cases on applications for inventor compensation are helpful to a point, but they provide no substitute for the statutory test, which requires the benefit to be outstanding. That is an ordinary English word meaning exceptional or such as to stand out and it refers to the benefit (in terms of money or moneys worth) of the patent to the employer rather than the degree of inventiveness of the employee. It is, however, both a relative and qualitative term and the context must be considered [39]. An undertaking is a unit or entity which carries on a business activity, and here the undertaking to be considered is that of the company or other entity which employs the inventor [41]. The correct approach in identifying the relevant undertaking is to look at the commercial reality of the situation. Where a group company operates a research facility for the benefit of the whole group and the work results in patents which are assigned to other group members for their benefit, the focus of the inquiry into whether any one of those patents is of outstanding benefit to the company must be the extent of the benefit of that patent to the group and how that compares with the benefits derived by the group from other patents for inventions arising from the research carried out by that company [48]. A highly material consideration is the extent of the benefit of the Shanks patents to the Unilever group and how that compares with the benefits the group derived from other patents resulting from the work carried out at CRL [51]. The court should take into account matters such as the fact that a large undertaking might be able to harness its goodwill and sales force in a way that a smaller undertaking could not do [53]. However, a tribunal should be very cautious before accepting a submission that a patent has not been of outstanding benefit to an employer simply because it has had no significant impact on its overall profitability or the value of all of its sales [54]. As to the relevance of tax, the employee must account for any tax due on his or her fair share and the employer must account for any tax due on the balance. This approach is consonant with the legislative purpose of the provisions of the 1977 Act and is fairer than an approach which requires the employer to pay the employee a share of the benefit net of tax [58]. Separately, if the benefit is outstanding, then the fair share of the benefit should reflect the deleterious effect on the real value of money of the substantial time between Unilevers receipt of the licence fees and other moneys and its making of any payment of compensation [66]. The 1977 Act does not bar the Comptroller from having regard to the impact of inflation. This approach is not unduly complex and should not encourage delay [67]. The hearing officers assessment of the benefit of the Shanks patents was flawed. First, he adopted the wrong starting point. CRLs undertaking for the purposes of section 40 was the business of generating inventions and providing those inventions and the patents which protected them to Unilever for use in connection with its business [79]. Secondly, the hearing officers particular focus upon the overall turnover and profits generated by Unilever was misdirected [80]. Thirdly, it cannot be said that the size and success of Unilevers business as a whole played any material part in securing the benefit it has enjoyed from the Shanks patents, and the hearing officer failed to take into account relevant matters [81]. Fourthly, the hearing officer wrongly adopted an approach which involved assessing the extent and nature of the benefit derived from a patent simply by comparing it to the patent owners overall turnover or profits [82]. The hearing officers decision must be set aside [84]. The benefit Unilever enjoyed from the Shanks patents was outstanding within the meaning of section 40 [85]. Mr Justice Arnold was wrong to find that 3% would have represented a fair share of the benefit Unilever enjoyed from the Shanks patents [90]. It would not be appropriate to interfere with the hearing officers conclusion that 5% would have been a fair share [91]. The fair share to which Professor Shanks is entitled is 2m and the appeal is allowed [92 93].

This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for hearing loss suffered by employees prior to 1 January 1990. The central issue is whether liability existed at common law in negligence and/or under s.29(1) of the Factories Act 1961 towards an employee who suffered noise induced hearing loss due to exposure to noise levels between 85 and 90dB(A)lepd. Mrs Baker, the Respondent, worked in a factory in Sutton in Ashfield, Nottinghamshire, from 1971 until 2001. From 1971 to 1989 she was exposed to noise which was found at trial to have been between 85 and 90dB(A)lepd and which had led to her sustaining a degree of noise induced hearing loss. The measure db(A)lepd indicates exposure at a given sound level over a period of eight hours. Mrs Baker brought a claim against her employers, for whom liability now rests with Quantum Clothing Group Ltd, one of the Appellants. A number of other individuals brought similar claims against Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd, and all the claims were decided together as test cases. Only Mrs Baker was found to have suffered hearing loss due to noise exposure in her employment and the other claims were therefore dismissed. Mrs Bakers claim was dismissed on the different basis that her employers had not committed any breach of common law or statutory duty. The Court of Appeal allowed an appeal by Mrs Baker and reached conclusions less favourable to all four employers than those arrived at by the judge at first instance. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have had greater than average knowledge and were liable at common law from late 1983. S.29(1) of the Factories Act 1961 provides that, every place at which any person has at any time to work shall, so far as is reasonably practicable, be made and kept safe for any person working there. The Court held that the section imposes a more stringent liability than at common law and in particular that what was safe was to be judged irrespective of whatever was regarded as an acceptable risk at the time. On this basis the Court held that the date from which liability arose under the section was January 1978. The present appeal has been brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening. The Supreme Court allows the appeal by a majority of 3:2 and restores the judges decision at first instance. Lord Mance gives the lead judgment. Lord Dyson gives an additional concurring judgment, and Lord Saville agrees with both. Lord Kerr and Lord Clarke give dissenting judgments. The Supreme Court first dealt with common law liability in negligence. The central question was whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The judge at first instance had found that it did until the terms of a draft European Directive of 1986, which proposed a lower limit, came to be generally known in 1988 via a consultative document. The Court upheld that conclusion of the judge. Examination of the underlying statistical material did not undermine the relevance of the Code as a guide to acceptable practice. It was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s. The Court also endorsed a further two year period beyond 1988 allowed by the judge for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990. The Court of Appeal had been incorrect to replace that period with a period of six to nine months. On the facts, Quantum and Guy Warwick were in the position of average employers to whom the 1 January 1990 date applied. Courtaulds and Pretty Polly, however, were in a special position. By the beginning of 1983 they had an understanding of the risk that some workers would suffer damage from exposure to between 85 and 90dB(A)lepd, which distinguished their position from that of the average employer. Allowing a further two years to implement protective measures, they were potentially liable at common law from the beginning of 1985. The Court then dealt with liability under s.29(1) of the 1961 Act. In construing the section, the Court first held that a workplace may be unsafe within the meaning of the section not only due to its physical fabric, but also due to activities carried on in it. The next question was whether the section applies to risks created by noise. The Court held that it did, on the basis that the section could accommodate attitudes to safety that were not held at the time when it was enacted. Thirdly, the Court held that what is safe is a relative concept that must be judged having regard to general knowledge and standards at the time of the alleged breach of duty. Finally, the Court held that the qualification, so far as is reasonably practicable, also allows such general knowledge and standards to be taken into account. Applying that construction, the section did not impose in this respect a more stringent liability than at common law. The employers by complying with the Code of Practice were not in breach of the statutory duty before like dates as those from which they were potentially liable at common law. Lord Kerr and Lord Clarke dissented. They held that the terms of the Code of Practice and other material available by 1976 were such that employers should have been aware that damage to hearing could occur at levels below 90dB(A)lepd and that certain individuals in the workforce would be particularly vulnerable at those levels. Further, the employers should have been aware that they could have reduced that risk at not inordinate cost by the provision of ear protection. Liability therefore arose at common law from the late 1970s onwards. As to liability under s.29(1), the concept of safety, unlike the qualification of reasonable practicability, does not include an assessment of what was foreseeable at the time. On the facts, the workplaces were not safe and it was reasonably practicable to provide ear protection. The dissenting Justices therefore held that employers were liable under the section from 1978 as held by the Court of Appeal.

Local authority rates are payable in respect of the rateable occupation of hereditaments. Rates are a tax on property and hereditaments are the units of assessment. The statutory definition of hereditament in section 115(1) of the General Rate Act 1967 states that it is such a unit of property which is, or would fall to be, shown as a separate item in the valuation list. Where different parts of an office building are occupied by the same occupier, the ordinary practice of the valuer is to enter them as a single hereditament if they are contiguous, but as separate hereditaments if they are not. The property in question in this appeal, Tower Bridge House, is an eight storey office block in St Katherines Way, London. Mazars, a firm of chartered accountants, occupies the second and sixth floors of the building under separate leases. These floors are separated by common areas in the building and were entered in the 2005 rating list as separate hereditaments. In February 2010 Mazars applied to the Valuation Tribunal for England (VTE) to merge the two entries to form a single hereditament. The VTE agreed that the two entries should be merged. The Valuation Officer, Mr Woolway, appealed to the Upper Tribunal (Lands Chamber) on the grounds that the properties were two separate hereditaments. The Upper Tribunal confirmed that the premises could be treated as one hereditament. The Court of Appeal dismissed Mr Woolways appeal. Mr Woolway appeals to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Sumption gives the leading judgment and Lord Neuberger, Lord Carnwath and Lord Gill give separate concurring judgments. The question in this appeal is how different storeys under common occupation in the same block are to be entered in the rating list for the purpose of non domestic rating [1]. Three broad principles apply in answering this question. The primary test is geographical, being based on visual or cartographic unity. Contiguous spaces will normally possess this characteristic, but unity is not simply a question of contiguity. If contiguous units do not intercommunicate and can be accessed via other property of which the common occupier is not in exclusive possession, this will be a strong indication that they are separate hereditaments. Second, where two spaces are geographically distinct, a functional test may nevertheless enable them to be treated as a single hereditament, but only where the use of the one is necessary to the effectual enjoyment of the other. Third, the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the premises. This calls for a factual judgment on the part of the valuer, exercising professional common sense [12]. In the present case neither a geographical nor a functional test was applied [20]. The appeal is allowed therefore. The orders of the Valuation Tribunal and Upper Tribunal are set aside and the Court makes a declaration that the premises demised to Mazars on the second and sixth storeys of Tower Bridge House are to be entered in the rating lists as separate hereditaments [22]. In his concurring judgment, Lord Gill emphasises that the reference to functionality in the tests articulated by Lord Sumption does not refer to the use which the ratepayer chooses to make of the premises. Rather, it is a reference to the necessary interdependence of the separate parts of the property that is objectively ascertainable [39]. The concept of fairness has no place in the application of the three principles laid down by Lord Sumption, which provide straightforward and workable guidance [40]. Contiguity is not the decisive criterion in the geographical tests. Properties that are discontinguous but geographically linked may constitute one hereditament if the occupation of one part would be pointless without the occupation of the other [41]. The discontiguity between the offices in question lies in the fact that the only access between them is through the public part of the building, not whether they are vertically or horizontally adjacent [43]. Lord Neuberger, concurring with Lord Sumption and Lord Gill, concludes that a hereditament is a self contained piece of property, namely all parts of which are physically accessible from all other parts, without having to go onto other property [47]. Where premises consist of two self contained pieces of property it would require relatively exceptional facts before they could be treated as a single hereditament. The mere fact that each property may have the same occupier should, normally, make no difference [51]. If, however, one property could not be sensible occupied or let other than with the other property, they should normally be treated as single hereditament [52]. In order to decide whether two separate self contained units of property constitute a single hereditament the relationship between the two properties should be considered. The plant, machinery and other fixtures which form part of the property for rating purposes are relevant to this consideration [55]. Two separate self contained floors in the same office building, whether or not they are contiguous, cannot be said to constitute a single hereditament, at least in the absence of very unusual facts. Once they cease to be self contained, so that each floor is accessible from the other without going onto other property, then the two hereditaments will normally be treated as having been converted into one larger hereditament [56]. Lord Carnwath agrees with the judgment of Lord Sumption but does not express a concluded view on the treatment of contiguous floors [62].

Newhaven is a port town on the mouth of the River Ouse in East Sussex; its harbour (the Harbour) has existed since the mid sixteenth century. The Newhaven Harbour and Ouse Lower Navigation Act 1847 established harbour trustees with powers to maintain and support the Harbour and associated works. The Newhaven Harbour Improvement Act 1878, transferred these powers to the Newhaven Harbour Company. That Act also conferred on the Harbour Company the power to make byelaws in the manner prescribed by the Harbours, Docks and Piers Clauses Act 1847. In 1931, byelaws were made regulating access to the Harbour and the use of the Harbour for (among other things) fishing, playing sports or games and dog walking (the Byelaws). The Harbour was subsequently vested in Newhaven Port and Properties Limited (NPP) in 1991 by statutory instrument (the 1991 Newhaven Order). West Beach (the Beach) is part of the operational land of the Harbour, and is subject to statutory provisions and to the Byelaws. NPP is obliged to maintain and support the Harbour and it has powers including the dredging of the sea bed and the foreshore In December 2008 Newhaven Town Council applied to the County Council to register the beach as a town or village green on the basis that it had been used by a significant number of local inhabitants as of right for a period of at least 20 years. The issue raised by this appeal is whether the County Council was wrong in law to decide to register the Beach as a village green under the Commons Act 2006. This was on the basis either: (i) that the public enjoyed an implied licence to use the foreshore and therefore the use was not as of right; (ii) that the public enjoyed an implied licence arising from the Byelaws and therefore the use was not as of right; or (iii) that in any event, the Commons Act 2006 cannot be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function. The Supreme Court unanimously allows the appeal. Lord Neuberger and Lord Hodge (with whom Lady Hale and Lord Sumption agree) give the main judgment, allowing the appeal on both the second and third ground. Lord Carnwath (who writes a concurring judgment) would have preferred not to reach any decision on the third ground as it was not necessary to do so in order to dispose of the appeal. Use as of right means use without any right, whether derived from custom and usage, statute, prescription or express or implied permission of the owner. NPP argued that the public enjoyed an implied licence to use the foreshore for sports and pastimes and therefore that use was not as of right. In the alternative they argued that the public had an implied licence to use the Beach arising from the Byelaws. In the further alternative they argued that the Commons Act 2006 could not be interpreted so as to enable registration in circumstances where registration was incompatible with some other statutory function to which the land was to be put, that is, as a working harbour [23 24]. Implied licence to use the foreshore In the absence of express permission from the owner of the foreshore, there are three possible conclusions on the legal basis of the publics use of the foreshore for bathing; (i) there exists a general common law right to use the foreshore for bathing; (ii) the owner of the foreshore is presumed to permit members of the public to use the foreshore for bathing until the owner revokes this implied permission; or (iii) no such right exists and members of the public who do so are trespassers [29]. However, given the difficulty of the issues raised, it seems that, unless necessary to do so for the purpose of determining this appeal, the Court ought not to determine the first issue; it is therefore best to proceed on the assumption that, so far as the general common law is concerned, members of the public used the Beach for bathing as of right and not by right [50 51] Lord Carnwaths concurring judgment offers further discussion and analysis on the question of public rights over the foreshore and the approach taken in Scotland, New Zealand and the United States [105 140]. Implied licence from byelaws A byelaw can permit an activity which would otherwise be unlawful; there is nothing in the wide words of the 1847 Clauses Act to prevent byelaws created under that Act from creating such a permission [54 56]. Moreover, a prohibition can be expressed in such a way as to imply a permission; a requirement that dogs in a park must be kept on a lead implies a permission to bring dogs into the park [57 58]. A normal speaker of English reading the Byelaws would assume that he or she was permitted to bathe or play provided the activity did not fall foul of the restrictions in the Byelaws [60 63]. The only remaining question was whether the Byelaw needed to be brought to the publics attention for this implied licence to exist. It is not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of land was permitted in order their use to be treated as being by right. In this case there existed a public law right for the public to go onto the land and to use it for recreational purposes, and therefore, the recreational use of the land in question by inhabitants of the locality was by right and not as of right [69 71]. It follows that NPPs appeal should be allowed on the second issue [74]. Statutory incompatibility The statutory scheme for registering town and village greens is analogous to the acquisition of rights over land by long use (prescription) under English and Scots law. Under both English and Scots law, it is not possible to acquire rights by prescription against a public authority which had acquired land for specified statutory purposes and continued to carry out those purposes, when the use of the land would be incompatible with those statutory purposes [91]. The question of incompatibility is one of the statutory construction and some assistance may be obtained from the rule that a later general provision does not depart from an earlier special one [93].The registration of the Beach as a town or village green would make it a criminal offence to damage the green or interrupt its use as a place for exercise and recreation. Registration would clearly be incompatible with the use of the Harbour as a working harbour [95 97]. It follows that the Commons Act 2006 cannot operate in respect of the Beach by reason of statutory incompatibility [101 102].

The First Appellant, Jane Steel, is a solicitor. In 2007 she was a partner in Bell & Scott LLP, the Second Appellant, who were a firm of solicitors in Glasgow. In her capacity as a solicitor Ms Steel had, for many years, acted for a Mr Hamish Munro, and subsequently a company in which he had an interest Headway Caledonian Ltd. This company was the registered owner of Cadzow Business Park in Hamilton, a property which comprised four different units, and had been registered with the Land Register in two separate titles. When the business park was purchased Headway Caledonian had granted the Respondent, NRAM, an all sums standard security over the property, which had been registered against the titles in 1998. In addition, in 2002, Headway had granted NRAM a floating charge over all its assets. In 2006 Headway entered into a contract for the sale of Unit 1 of the park and a request was duly made to NRAM to release this unit from its security. This was agreed by NRAM, in consideration of a repayment of 495,000, and it was understood by both parties that after the sale the security would remain in place in relation to Units 2 and 4 (Unit 3 having already been sold in 2005). The sale was due to complete on 23 March 2007. At 5pm on 22 March Ms Steel sent an email to NRAM asking for a letter of non crystallisation of the floating charge, and for the execution of two draft deeds of discharge. Ms Steel wrote: I also attach discharges for signing and returnas the whole loan is being paid off for the estate and I have a settlement figure for that. This request was not queried by NRAM, and the two deeds of discharge (which referred to the discharge of security over all three of the remaining units, rather than just Unit 1) were executed and a letter of non crystallisation drafted and signed. The letter was signed by Mr Clarke, the head of the Loan Review Team, who made no attempt to check the accuracy of Ms Steels statements against the material on NRAMs file. It has since been accepted by Ms Steel that the statement in her email was entirely inaccurate she had never been instructed that the whole loan was to be repaid, and neither did she have a settlement figure for that repayment. At trial, Ms Steel could not explain this error, and the fact that the security had been discharged went unnoticed by NRAM until 2010 when Headway Caledonian went into liquidation. NRAM consequently issued a claim against Ms Steel (and Bell & Scott LLP) for damages suffered as a result of its reliance on her email of 22 March 2007. NRAM alleged that she had owed it a duty of care and had made the statements in the email negligently. The Lord Ordinary dismissed the claim, but the Inner House allowed NRAMs reclaiming motion, and substituted an award of damages in its favour of 369,811.18. The Supreme Court unanimously allows the appeal and restores the interlocutor of the Lord Ordinary. Lord Wilson gives the judgment, with which Lady Hale, Lord Reed, Lord Hodge and Lady Black agree. The starting point, when considering whether someone is liable for a careless misrepresentation which causes economic loss, is the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. What lay at the heart of that decision was the need, in order for the representor to be liable, for the representee reasonably to have relied on the representation, and for the representor reasonably to have foreseen that he would do so [18 19]. However, it has since become clear that not all claims in tort for losses resulting from careless representations can easily be resolved by reference to this concept of assumption of responsibility. This was what prompted Lord Griffiths, in Smith v Eric Bush; Harris v Wyre Forest District Council [1990] 1 AC 831, to propose a threefold test that required (1) that it was foreseeable that, were the information given negligently, the claimants would be likely to suffer damage; (2) that there was a sufficiently proximate relationship between the parties; and (3) that it was just and reasonable to impose the liability [20 21]. This test was considered in Caparo Industries Plc v Dickman [1990] 2 AC 605, and for many years the court in Caparo was considered to have indorsed it. However, as has already been explained by the Supreme Court in other recent cases, the courts decision in Caparo was actually more nuanced than has often been allowed, and in fact the case is notable for its reassertion of the need for it to be reasonable for the representee to have relied on the representation, and for the representor to have reasonably foreseen that they would so rely [22 23]. Indeed, it is now clear that this concept of assumption of responsibility remains the foundation of liability for a careless misrepresentation, although the concept may sometimes require cautious incremental development in order to fit cases to which it does not readily apply [24]. Such development is unnecessary here, however, as the concept fits the case perfectly [25]. Consideration of six relevant authorities demonstrates that a solicitor will not assume responsibility towards the opposite party unless it was reasonable for the latter to have relied on what the solicitor said, and unless the solicitor should reasonably have foreseen that the opposite party would actually rely on the statement. These ingredients of reasonable reliance and foreseeability are particularly relevant to a claim against a solicitor by the opposing party, because it is presumed to be inappropriate for a solicitor to assume such a responsibility towards the other side [32]. In this case, the Lord Ordinary had found that Ms Steel generally expected NRAM to check her requests before complying with them, and therefore that she had not foreseen that they would rely on her assertions without checking their accuracy. In addition, any prudent bank taking basic precautions would have checked the accuracy of such statements, and it was therefore not reasonable for NRAM to have relied on the email [33]. The majority of the Inner House however had disagreed, and held that there were certain circumstances which led to the conclusion that Ms Steel had assumed responsibility for the representations in the email, such that the court did not even need to consider whether NRAM should have checked its file. These circumstances included, amongst other things, Ms Steels area of expertise, and the fact the NRAM had not instructed solicitors [34]. The approach of the majority was, however, incorrect. Nothing in the relevant case law supports a conclusion that it is not always necessary for a representee to show that it was reasonable of it to have relied on the relevant representation. This is an essential element of the concept of assumption of responsibility [35]. Moreover, the Lord Ordinary was correct to find that a commercial lender about to implement an agreement relating to its security does not act reasonably if it proceeds upon no more than a description of the agreements terms put forward by the borrower [38].

Mr Rahmatullah, a Pakistani citizen, was transferred to US forces after being detained by British forces in February 2004 in an area of Iraq under US control. Shortly after that, the UK authorities became aware that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it. By June 2004 UK officials knew that Mr Rahmatullah was no longer in Iraq. He had been taken to Afghanistan and was being held in a detention facility in Bagram Air Field and there he has remained. On 15 June 2010 the recommendation of a detainee review board of the US army that Mr Rahmatullah be released was approved by a senior officer but this has not taken place. On 23 March 2003 a Memorandum of Understanding regarding the transfer of those captured in the fighting in Iraq was signed on behalf of the armed forces of the US, UK and Australia (the 2003 MOU). The 2003 MOU was to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4). The 2003 MOU provided that any prisoners of war, civilian internees, and civilian detainees transferred by the UK would be returned by the US to the UK without delay upon request by the UK (clause 4). It also provided that the removal of transferred prisoners of war away from Iraq would only be made by agreement between the UK and the US (clause 5). The 2003 MOU was not legally binding. It was a diplomatic agreement between the countries concerned. The Divisional Court refused an application made on Mr Rahmatullahs behalf for a writ of habeas corpus requiring his release. On appeal, the Court of Appeal allowed Mr Rahmatullahs appeal and issued a writ of habeas corpus requiring the UK to seek his return or at least demonstrate why it could not. The Secretary of State requested the US authorities to return Mr Rahmatullah. A letter was received in response from the US deputy assistant Secretary of State for Defense. The US authorities did not agree to return Mr Rahmatullah to the UK. The letter stated that the US had already received a request from the Government of Pakistan for Mr Rahmatullah's repatriation, and that they considered it to be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan. The Court of Appeal found that this letter was a sufficient response to the writ of habeas corpus and that was the end of the matter. The Secretary of State appealed the decision of the Court of Appeal to issue the writ of habeas corpus and Mr Rahmatullah cross appealed the decision that the response by the US was sufficient to demonstrate that the UK could not secure his release. The Supreme Court unanimously dismisses the appeal of the Secretary of State and by a majority of 5 2 (Lady Hale and Lord Carnwath dissenting) dismisses the cross appeal of Mr Rahmatullah. Lord Kerr gave the leading judgment with which Lord Dyson and Lord Wilson agreed. The UK does not need to have actual custody of Mr Rahmatullah to exercise control over his release as habeas corpus is a flexible remedy [42 43]. It is sufficient for the issuing of a writ of habeas corpus that there was material before the court suggesting that there was a reasonable prospect of the UK obtaining his release, OBrien [1923] AC 603 applied [46 48, 64]. The fact that the 2003 MoU was not legally binding does not reduce its significance. The UK needed the agreement to show that it had effectively ensured that the Geneva Conventions (GC) would be complied with. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US [8 11]. The assertion by a witness for the Secretary of State that it would be futile to request Mr Rahmatullahs return was not supported by any evidence. Such a claim was surprising given the nature and terms of the 2003 MoU [15]. Although the legality of Mr Rahmatullahs detention did not need to be determined for the purposes of this appeal, there was clear prima facie evidence that he is detained unlawfully under the GC. The UK was under a duty to ensure that Mr Rahmatullah was not being held in breach of the GC or to request his return [22 40]. The issue of the writ was not an instruction to the Government to act in any particular way or to engage in diplomacy. It merely reflected the fact that there were sufficient grounds for believing that the UK Government could obtain control over the custody of Mr Rahmatullah. What was required of them was to show whether or not control existed in fact [60]. The decision to issue the writ did not entail any intrusion in the area of foreign policy [68]. On the cross appeal; the letter sent by the US authorities, while not explicitly referring to the 2003 MoU, did not suggest that it had not been considered. The US authorities had a copy of the Court of Appeals decision and were aware of the basis upon which it was made. It was clear from their response that the US authorities felt they were holding Mr Rahmatullah lawfully and were not willing to relinquish control of his detention to the UK [83 84]. Lord Phillips gives a short concurring judgment agreeing that there was sufficient evidence to suggest that the UK may be able to exert control over Mr Rahmatullah to issue the writ. He also considered that the issues of whether it mattered that Mr Rahmatullah had been handed over lawfully by the UK in the first place and whether Mr Rahmatullah could invoke in domestic proceedings the obligations of the UK under the Geneva Conventions had not been resolved in this case [100 107]. Lord Reed gives a concurring judgment. He agrees with Lord Kerr that the appeals should be dismissed but on the narrower ground that there was sufficient uncertainty as to whether the UK authorities had control of Mr Rahmatullahs detention to justify the issue of the writ [111 114]. Lady Hale and Lord Carnwath give a short joint judgment concurring with the majority in relation to the Secretary of States appeal but dissenting on the cross appeal. The basis for issuing the writ was the UKs apparent control provided by the 2003 MoU, supported by the UKs continuing responsibility as detaining authority under the Geneva Conventions (GC4). The UK Government did not make it clear to the US that it had an unqualified right under Clause 4 of the 2003 MoU to require Mr Rahmatullahs return. The US response similarly failed to deal with that central issue. In these circumstances, Lady Hale and Lord Carnwath found, the court should not rest on an inconclusive response, but should require resubmission of the request in firmer terms by the UK [125 131].

Article 50 of the Treaty on the European Union provides, in summary terms, that, if a member state decides to withdraw from the European Union (the EU) in accordance with its own constitutional requirements, it should serve a notice of that intention (a Notice), and that the treaties which govern the EU (the EU Treaties) shall cease to apply to that member state within two years thereafter. Following the June 2016 referendum, the Government proposes to use its prerogative powers to withdraw from the EU by serving a Notice withdrawing the UK from the EU Treaties. The principal issue in these appeals is whether such a Notice can, under the UKs constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament. Northern Ireland, and interventions by the Lord Advocate for the Scottish Government and the Counsel General for Wales for the Welsh Government, raise the additional issues of whether the terms on which powers have been statutorily devolved require consultation with or the agreement of the devolved legislatures before Notice is served, or otherwise operate to restrict the Governments power to do so (the devolution issues). The UKs constitutional requirements are a matter of domestic law which the parties all agree should be determined by UK judges. The issues in these proceedings have nothing to do with political issues such as the merits of the decision to withdraw, the timetable and terms of so doing, or the details of any future relationship between the UK and the EU. The claimants submit that, owing to the well established rule that prerogative powers may not extend to acts which result in a change to UK domestic law, and withdrawal from the EU Treaties would change domestic law, the Government cannot serve a Notice unless first authorised to do so by an Act of Parliament. Resolution of this dispute depends on the proper interpretation of the European Communities Act 1972 (the ECA), which gave domestic effect to the UKs obligations under the then existing EU Treaties, together with subsequent statutes, which gave effect to and related to later EU Treaties, and the European Union Referendum Act 2015. The devolution issues require the court to consider whether the terms of the Northern Ireland Act 1998 (NIA), and associated agreements, require primary legislation, and the consent of the Northern Ireland Assembly and/or the people of Northern Ireland, before a Notice can be served. Under each of the devolution settlements in Northern Ireland, Scotland and Wales the devolved legislatures have responsibilities to comply with EU law, and there is a convention (the Sewel Convention) that the UK Parliament will not normally exercise its right to legislate with regard to devolved matters without the agreement of the devolved legislature. The principal issue was raised in proceedings brought by Gina Miller and Deir Dos Santos against the Secretary of State for Exiting the European Union. The Divisional Court of England and Wales (Lord Thomas LCJ, Sir Terence Etherton MR and Sales LJ), declared that the Secretary of State did not have power to give Notice, without Parliaments prior authority. The Secretary of State has appealed to the Supreme Court against this decision. The Northern Ireland claims were heard together by Maguire J in the Northern Ireland High Court, who determined and dismissed the devolution issues, and, on an application by the Attorney General for Northern Ireland Maguire J referred four issues to the Supreme Court and the Northern Ireland Court of Appeal referred one further issue. The Supreme Court by a majority of 8 to 3 dismisses the Secretary of States appeal (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge in the majority with Lord Reed, Lord Carnwath and Lord Hughes dissenting). In a joint judgment of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. Each of the dissenting justices gives a separate judgment. On the devolution issues, the court unanimously concludes that neither section 1 nor section 75 of the NIA is of assistance in this case, and that the Sewel Convention does not give rise to a legally enforceable obligation. The principal issue Majority judgment The Supreme Court considers that the terms of the ECA, which gave effect to the UKs membership of the EU, are inconsistent with the exercise by ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament Section 2 of the ECA authorises a dynamic process by which EU law becomes a source of UK law and takes precedence over all domestic sources of UK law, including statutes [60]. So long as the ECA remains in force its effect is to constitute EU law as an independent and overriding source of domestic law [65]. It operates as a partial transfer of law making powers, an assignment of legislative competences, by Parliament to EU institutions, unless and until Parliament decides otherwise [67 68]. It is common ground that UK domestic law will change as a result of the UK ceasing to be party to the EU treaties and the rights enjoyed by UK residents granted through EU law will be affected [69]. The Government argues that the 1972 Act does not exclude the power for ministers to withdraw from the EU Treaties, and that section 2 of the Act actually caters for the exercise of such a power as it gives effect to EU law only so long as the power of withdrawal is not exercised [75]. However, there is a vital difference between variations in UK law resulting from changes in EU law, and variations in UK law resulting from withdrawal from the EU Treaties. Withdrawal makes a fundamental change to the UKs constitutional arrangements, by cutting off the source of EU law, [78 80]. Such a fundamental change will be the inevitable effect of a Notice being served [81]. The UK constitution requires such changes to be effected by Parliamentary legislation [82]. The fact that withdrawal from the EU would remove some existing domestic rights of UK residents also renders it impermissible for the Government to withdraw from the EU Treaties without prior Parliamentary authority [83]. It would have been open to Parliament when enacting the ECA to authorise ministers to withdraw from the EU Treaties, but clear words would have been required; not only are there no such clear words, but the provisions of the ECA indicate that ministers do not have such power [87, 88]. Withdrawal is not authorised by section 2, which envisages ministers taking part in the EU law making processes: withdrawing from the EU is doing the opposite [95]. The fact that ministers are accountable to Parliament for their actions is no answer constitutionally, if the power to act does not exist in the first place and where (as the court has been asked to assume) the exercise of the power would be irrevocable and pre empt any Parliamentary action [92]. Subsequent EU related legislation and events after 1972, including the introduction of Parliamentary controls in relation to decisions made by UK ministers at EU level relating to the competences of the EU or its decision making processes, but not to the giving of notice under Article 50(2), are entirely consistent with an assumption by Parliament that no power existed to withdraw from the treaties without a statute authorising that course [111]. The 2016 referendum is of great political significance. However, its legal significance is determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences. The change in the law required to implement the referendums outcome must be made in the only way permitted by the UK constitution, namely by legislation. The Government accepts that the resolution of the House of Commons on 7 December 2016 calling on ministers to give notice under Article 50 by 31 March 2017 is a political act which does not affect the issues arising in the appeals [116 124]. Dissenting judgments Lord Reed, with whom Lord Carnwath and Lord Hughes agree, considers that the effect which Parliament has given to EU law under the ECA is inherently conditional on the application of the EU treaties to the UK and therefore on the UKs membership of the EU. The ECA does not impose any requirement or manifest any intention in respect of the UKs membership of the EU. It does not therefore affect the Crowns exercise of prerogative powers in respect of UK membership [177]. Lord Carnwath observes that service of notice under Article 50(2) will not itself change any laws or affect any rights but is merely the start of an essentially political process of negotiating and decision making within the framework of that article. The Government will be accountable to Parliament for those negotiations and the process cannot be completed without the enactment by Parliament of primary legislation in some form [259]. The devolution issues The devolution Acts were passed by Parliament on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member. Relations with the EU and other foreign affairs matters are reserved to UK Government and parliament, not to the devolved institutions. Withdrawal from the EU will alter the competence of the devolved institutions, and remove the responsibilities to comply with EU law. [129 130]. In view of the decision of the majority of the Justices that primary legislation is required for the UK to withdraw from the EU, it is not necessary for the court to decide if the NIA imposes a discrete requirement for such legislation [132]. The decision to withdraw from the EU is not a function carried out by the Secretary of State for Northern Ireland in relation to Northern Ireland within the meaning of section 75 NIA. Moreover, section 1 NIA, which gave the people of Northern Ireland the right to determine whether to remain part of the UK or to become part of a united Ireland, does not regulate any other change in the constitutional status of Northern Ireland [133 135]. As to the application of the Sewel Convention to the decision to withdraw from the EU given the effect on the devolved competences, the Convention operates as a political constraint on the activity of the UK Parliament. It therefore plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UKs decision to withdraw from the EU [136 151].

The Respondent, Mr Mott, has a leasehold interest in a putcher rank fishery on the banks of the Severn Estuary. A putcher rank is an old fishing technique, involving the use of conical baskets to trap adult salmon as they attempt to return from the open sea to their river of origin to spawn. According to Mr Motts evidence, the operation of the putcher rank has been his full time occupation since 1979. The Appellant, the Environment Agency (the Agency), has a long standing policy of reducing exploitation of salmon stocks in the area. For some years, the status of salmon stock in the Wye and Usk rivers, to which mixed salmon stock in the Severn Estuary are destined to return, has been categorised as unfavourable or at risk. These rivers are designated as Special Areas of Conservation (SAC) under European law and are part of the wider Severn Estuary European Marine Site. To operate the putcher rank during salmon season, Mr Mott has needed an annual licence from the Agency under section 25 of the Salmon Freshwater Fisheries Act 1975 (the 1975 Act). With effect from 1 January 2011, the 1975 Act was amended to enable the Agency to grant a licence subject to conditions which limit the number of fish taken as the Agency considered necessary for the protection of any fishery. On 1 June 2012, after negotiations between the parties for termination of the lease and permanent cessation of the putcher rank fishery failed, the Agency served notice on Mr Mott under the amended 1975 Act limiting his catch to 30 fish for the 2012 season. Further limits of 23 salmon and 24 salmon were imposed in 2013 and 2014, respectively. Whilst Mr Mott was paid compensation on various occasions between 2004 and 2011 not to operate the fishery during particular seasons, no compensation was paid to him in relation to the restrictions imposed between 2012 and 2014. Mr Mott began judicial review proceedings against the Agencys decision to impose conditions. He claimed that the catch limit conditions made his fishery wholly uneconomic to operate. He also claimed that the decisions were irrational and in breach of his property rights under Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR). The judge held that the decisions were irrational and that, under A1P1, the Agency could not properly have imposed the conditions, if otherwise lawful, without payment of compensation. The Court of Appeal allowed the Agencys appeal on the issue of irrationality, but dismissed the appeal under A1P1. Only the A1P1 issue arises on appeal to the Supreme Court. The Supreme Court unanimously dismisses the Agencys appeal. Lord Carnwath gives the lead judgment with which the other justices agree. The application of A1P1, in circumstances comparable in some respects to the present, was considered by the Court of Appeal in R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] 1 WLR 1267 [19]. In Trailer and Marina, Neuberger LJ referred to the decision of the Grand Chamber of the European Court of Human Rights (ECtHR) in Sporrong & Lonnroth v Sweden (1982) 5 EHRR 85 for the proposition that, irrespective of whether an interference with property rights can be classified as a deprivation or a control of use under A1P1, it may be necessary to consider whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individuals fundamental rights [20]. An authoritative summary of the principles is found in the Grand Chamber ECtHR decision of Hutten Czapska v Poland (2007) 45 EHRR 4 which held that in each case involving an alleged violation of A1P1 the court must ascertain whether by reason of the states interference the person concerned had to bear a disproportionate and excessive burden [22]. The issues arising in this appeal were: (i) whether the conditions imposed by the Agency amounted to control or de facto expropriation under A1P1, (ii) if the former, did the fair balance require compensation to be paid, and (iii) if the latter, were there any exceptional circumstances justifying the absence of compensation [27]. The Agency submitted that the restrictions in question were clearly a control of use of Mr Motts property. As to whether a fair balance had been struck, the Agency referred to its important responsibilities with respect to protection of the environment, a factor emphasised in the ECtHR case law [28 30]. Mr Mott submitted that the effect of the conditions was to nullify the practical use of his lease, and thus amounted to expropriation. Even if the conditions were regarded as a control of use, the courts below were entitled to find that they required Mr Mott to shoulder an excessive and disproportionate burden, such that breach of A1P1 could only be prevented by payment of compensation [31]. The Court found that that the distinction between expropriation and control under ECtHR case law is neither clear cut nor crucial to the present analysis. It is necessary to consider whether the effect on the particular claimant was excessive and disproportionate [32]. The Agency was correct to emphasise the special importance of environmental protection but this does not detract from the need to draw a fair balance, nor from the potential relevance of compensation [33]. Against the background of the ECtHR case law, the Court was unable to fault the judges analysis of the applicable legal principles in this case [34 36]. The fact that the conditions imposed by the Agency were closer to deprivation than mere control was clearly relevant to the fair balance. The Agency gave no consideration to the particular impact on Mr Motts livelihood, which was severe. The judge suggested that the lease retained some small value if sold for leisure rather than commercial use but this was doubtful and did not consider restrictions on Mr Motts ability to transfer his interest in the lease [36]. In upholding the decision of the courts below, the Court emphasised that this was an exceptional case on the facts, because of the severity and the disproportion (as compared to others) of the impact on Mr Mott. The national authorities have a wide margin of discretion in the imposition of necessary environmental controls, and A1P1 gives no general expectation of compensation for adverse effects. Furthermore, where (unlike this case) the authorities have given proper consideration to the issues of fair balance, the courts should give weight to their assessment [37].

This appeal concerns the final stage of the administration of Lehman Brothers International (Europe) (LBIE). It became commercially insolvent due to the worldwide crash of the Lehman group. LBIE went into administration on 15 September 2008. The administration generated an unprecedented surplus in the region of 7 billion. It is estimated that about 5 billion is payable as statutory interest. All unsecured creditors have already been repaid the principal sums owed, in full, by 30 April 2014. The question on appeal is whether interest payable under rule 14.23(7) of the Insolvency Rules 2016 (the 2016 Rules) is yearly interest within the meaning of section 874 of the Income Tax Act 2007 (the 2007 Act). If so, the administrators must deduct income tax before paying interest to creditors. In the High Court, Mr Justice Hildyard considered that statutory interest under rule 14.23(7) is not yearly interest for the purposes of the 2007 Act. This was because of the absence of any accrual of interest over time, before the surplus was identified and quantified. The Court of Appeal disagreed, allowing the appeal by the Commissioners (HMRC). It considered that interest under rule 14.23(7) is indeed yearly interest. It did not accept a requirement that yearly interest should accrue over time and considered that, because the statutory interest was compensation for the creditors, it had the required long term quality. The administrators now appeal to the Supreme Court. The Supreme Court dismisses the appeal. Lord Briggs gives the lead judgment, with which all members of the Court agree. Income tax must be deducted before payment of statutory interest to the creditors. Rule 14.23(7) of the 2016 Rules, which replaced substantially identical provisions in rule 2.88(7) of the Insolvency Rules 1986, requires a surplus after payment of proved debts in an administration to be used for payment of statutory interest [1]. Interest is paid as statutory compensation for the loss which the creditors have suffered by being kept out of their money during the administration [6]. Section 874 of the 2007 Act, which is a much more historic provision within the income tax legislation, requires a debtor to deduct income tax from payments of yearly interest arising in the UK [1, 11 15]. Historically, the income tax legislation adopted a dichotomy between the treatment of interest of any kind which is not paid out of profits or gains, on the one hand, and yearly interest, on the other hand [15]. The mandatory deduction at source of yearly interest remains in place for interest paid by companies as well as certain other categories of taxpayers, and interest paid by any person to someone whose usual place of abode is outside the UK [15]. There are two lines of English and Scottish case law that are relevant to this appeal. The first deals with whether interest which accrues over time is properly categorised as yearly interest [20]. The second is mainly concerned with interest payable as a result of a judicial decision, either when granting an equitable remedy or when exercising a discretion to award interest under statute [20]. However, statutory interest under rule 14.23(7) of the 2016 Rules does not strictly fall within either category. The answer to the question on appeal must thus be found by analogy [20]. In the first line of cases, a number of general tests for whether interest is yearly interest or not were laid down [21 29]. These were summarised by the Court of Session in Inland Revenue Comrs v Hay (1924) VIII TC 636 (the Hay tests). In summary: (1) interest payable on so called short loans is not yearly interest; (2) for interest to be yearly interest, there must be some element of permanence in the contractual arrangement under which it is payable; (3) the arrangement under which interest is payable must be in the nature of an investment; (4) the loan must not be one repayable on demand; and (5) there must be some tract of future time during which interest will continue to be payable [30]. The Hay tests remain the best convenient summary about the meaning of yearly interest in the context of interest which accrues over time [33]. In the second line of cases, the same question has been addressed in the context of interest usually payable in a single lump sum [34]. The most important case is the House of Lords decision in Riches v Westminster Bank Ltd [1947] AC 390 [36 42]. In most of these cases, interest became payable only after the event (and usually in one lump sum) upon the order of the court and it served as compensation for being deprived of money or property during a past period [34, 47 48]. Relevant examples include cases where a trustee has misused trust property and cases where the court has ordered interest to be paid on damages, such as for personal injury, until the date of judgment [34 48]. Where that period exceeds a year, interest was held to be yearly interest for income tax purposes [52]. Interest payable on a surplus in an administration is of a special type [49]. Such interest, once paid, compensates proving creditors for being kept out of their proved debts in respect of the period from the beginning of the administration until they are actually paid [49]. Consequently, the relevant analogy is to the second line of cases [47 48, 52]. This is because in both the present appeal and those cases there is no liability to pay interest during the period in respect of which it is calculated, and the interest is not itself payable over a period of time [47 48]. Moreover, in both cases, it cannot be known during the period of calculation whether interest will in fact be payable at all [47 48]. In both, the interest amounts to compensation for the recipients having been out of their money [48, 52]. There is no relevant uncertainty, because, like in the trust and personal injury cases, the taxpayer will know to which period the interest relates by the time it becomes due and thus make suitable tax deductions [54]. In the present case, the period is fixed by the date of commencement of the administration and the date (or dates) when the proving creditors are paid their debts [54]. Arguments based on the source of the relevant income conflict with the second line of cases [55 56]. Further, they are wrong in principle as: (1) the income tax deduction obligation under section 874 of the 2007 Act does not depend on whether the interest is taxable in the hands of the recipient; (2) it is artificial to regard the source of statutory interest as either the realisation of the surplus or the administrators decision to pay interest; and (3), if anything, the relevant status of the recipient is as a proving creditor between the start of the administration and payment of the principal debt [57 59]. On the present facts, the result is that the statutory interest payable is yearly interest [61]. Therefore, income tax is to be deducted at source pursuant to section 874 of the 2007 Act [61].

The issues in this appeal are (a) whether, in the absence of any statutory power, a District Judge in extradition proceedings has the power to admit the evidence in a closed material hearing (without disclosing it to the State requesting extradition); and alternatively (b) whether, in such proceedings, a witness anonymity order can be made under the Coroners and Justice Act 2009, s.87 [2]. The facts were that the Government of Rwanda had, under Memoranda of Understanding with the United Kingdom dated 8 March 2013, requested the extradition of the Appellants and the Intervener to stand trial in Rwanda for war crimes [1]. In the extradition proceedings before Westminster Magistrates' Court, the Appellants sought to establish that their extradition risked exposing them to a flagrantly unfair trial (contrary to Article 6 of the ECHR) and even torture or mistreatment (contrary to Article 3 of the ECHR). Evidence on which they sought to rely came from witnesses who were unwilling to reveal their identity to the Rwandan Government and the Appellants argued that this evidence should be considered by the judge without being disclosed to the Rwandan Government or the CPS (who were acted on its behalf). The District Judge found that she could not consider evidence in a closed hearing or make witness anonymity orders [4] [8]. The Administrative Court dismissed the challenge to the District Judges decision but commented that the Coroners and Justice Act 2009, s.87 enabled witness anonymity orders to be made in extradition proceedings [9]. On appeal to the Supreme Court, it was common ground between the parties that the Coroners and Justice Act 2009, s.87 had no relevant application to extradition proceedings [47]. The Supreme Court dismisses the appeal by a 4 1 majority (Lord Toulson dissenting), finding that: (1) The judge had no power to order a closed material hearing or otherwise limit disclosure and was right not to do so [27] and [34]. (2) The judge had no power to order disclosure to the CPS on the condition that further disclosure to the Rwandan Government was prohibited and was right not to do so [35] and [37]. (3) The judge had no power to make a witness anonymity order under s.87 of the Coroners and Justice Act 2009 [47]. Lord Mance (with whom Lord Neuberger and Lord Reed agrees) gives the lead judgment and agrees with the judgment of Lord Hughes on the admissibility of anonymous evidence in extradition proceedings. Lord Hughes (with whom Lord Neuberger and Lord Reed also agree) agrees with Lord Mance but adds further comments. Lord Toulson dissents, but agrees with Lord Hughes on the admissibility of anonymous evidence in extradition proceedings. Lord Mance reasons that: (1) Section 77(1) of the Extradition Act 2003 provides that in extradition hearings the judge has the same powers (as nearly as may be) as a magistrates court would have if the proceedings were the summary trial of an information against the person whose extradition is requested [13]. That includes matters of evidence and procedure [19]. Although the parties were agreed that the normal rules of evidence should be relaxed in extradition hearings raising issues of human rights [21], the power of the court to order a closed material hearing remained limited to the exceptional circumstances recognised in Al Rawi v Security Service [2011] UKSC 34 (to protect the best interests of a child or where disclosure would undermine the whole object of the proceedings) [27] and [34]. It would not be in the interests of justice to allow further departure from the normal principle of open justice, as the relevance, truthfulness and persuasiveness of the evidence could not be tested in a closed material hearing [29]. (2) As the proceedings were, in substance, between the Appellants and the Rwandan Government, and the CPS represented the latter, there was no power to order disclosure to the CPS but prohibit disclosure to the Rwandan Government [37]. (3) The judge would not, as was common ground between the parties, have had the power to make a witness anonymity order under s.87 of the Coroners and Justice Act 2009 [47] [48]. Lord Hughes agrees with the conclusion of Lord Mance that an extradition court lacks the power to embark upon closed material hearings [53], but makes additional comments on (a) the relationship between extradition proceedings and any subsequent immigration or human rights claims [54] [62]; and (b) the power of the court to admit anonymous evidence in extradition proceedings conducted under the Extradition Act 2003, provided that the proceedings are nevertheless fair [63] [74]: Lord Toulson dissents on the basis that the District Judge had accepted that the proposed evidence was relevant [82] and that it would be wrong to assume (in effect) that the evidence was untrue merely because its veracity could not be tested in a closed material hearing [84]. He concluded that there should be an exception to the principle of open justice where, as here, not ordering a closed material hearing or not prohibiting disclosure to the State requesting extradition would facilitate a foreseeable and potentially serious breach of human rights [86] [93].

The Respondent operates a fish farm in Malta. On 17 June 2010, it was transporting tuna in fish cages when its vessel was attacked by a ship, named the Steve Irwin. One of the fish cages was rammed and divers from the Steve Irwin forced it open, releasing the fish. The Respondents crew were fought off with liquid filled bottles and rubber bullets. This incident was carried out by the Sea Shepherd Conversation Society (SSCS) as part of a campaign, called Operation Blue Rage, to intercept and oppose the overfishing of Bluefin tuna in the Mediterranean. SSCS was formed in 1997 in the state of Washington, USA, where it is still based, for the purpose of conserving and protecting ecosystems and species. Since then, a network of SSCS subsidiaries, such as the Appellant, have formed in various different countries. The Appellant, one such subsidiary, is a company limited by guarantee and a registered charity based in the UK. Its general objectives are to conserve and protect the worlds marine wilderness ecosystems and marine wildlife species. In 2010, its primary objective was to provide funds and support the aims and objectives of its parent organisation, SSCS. The Appellant had purportedly contributed in two main ways to the incident on 17 June 2010. It had: (i) participated in the fundraising for Operation Blue Rage; and, (ii) recruited two volunteers. In relation to the fundraising, SSCS involved the Appellant to make use of its bulk mailing services within the UK and so that UK donors could contribute through sterling cheques or transfers. As such, SSCS sent the Appellant a mailshot appealing for funds for Operation Blue Rage. This mailshot was designed, organised and paid for by SSCS but was sent out in the name of, and with (at least) the knowledge of, the Appellant, but not by or on the instructions of the Appellant. The subsequent donations, amounting to 1,730, were paid to the Appellant who then transferred this to SSCS. In relation to the recruitment of volunteers, the Appellant passed on the names of those who had contacted it about volunteering. One of the volunteers sourced a pump for the Steve Irwin. He and the other volunteer then transported the pump to the Steve Irwin and did a days work on board. The Respondent brought a claim in the English courts in tort against the Appellant for the loss and damage it had suffered. A preliminary issue was whether the Appellant could be held liable, directly or vicariously, for this damage. At trial, Hamblen J dismissed the claim finding that the Appellant could not be held liable. The Court of Appeal disagreed and allowed the Respondents appeal. The Supreme Court allows the appeal by a majority of three to two. Although all five Justices agree on the test for liability, they disagree as to the application of the test to the facts of this case. Lord Toulson delivers the lead judgment. Lord Neuberger and Lord Kerr give concurring judgments. Lord Sumption and Lord Mance give dissenting judgments. The test for liability Lord Toulson reasons that a defendant will be jointly liable for the tortious acts of the principal if the defendant: (i) acts in a way which furthers the commission of the tort by the principal; and, (ii) does so in pursuance of a common design to do or secure the doing of the acts which constitute the tort [21]. Lord Sumption agrees that a defendant will be jointly liable if: (i) he has assisted the commission of the tort by another person; (ii) it is pursuant to a common design; and, (iii) an act is done which is, or turns out to be, tortious [37]. Lord Neuberger agrees with these statements of the law [55], [61]. It is unwise to attempt to define the necessary amount of connection between the defendant and the tort; this is ultimately fact sensitive [56]. The defendants assistance must be substantial rather than minimal to be jointly liable. Once assistance is shown to be more than trivial, a defendants relatively unimportant contribution should be reflected through the courts power to apportion liability and then order contribution between the defendant and the principal [57]. Lord Kerr [90] and Lord Mance [91] agree with these formulations of the test. Application to the facts of this case Lord Toulson finds that Hamblen J correctly asked whether the Appellants contribution had any significance to the commission of the tort [25]. Hamblen J reached an entirely proper conclusion that the role played by the Appellant, based mainly on its fundraising relating to a small sum solicited by SSCS, had been of minimal importance [26]. Lord Neuberger considers that although the Appellant and SSCS shared a common design [68], the judge at first instance had been entitled to find that the Appellants contribution was minimal and played no effective part in the commission of the tort [70]. The Appellants recruitment of volunteers was trivial [72] and, in relation to the fundraising, all the Appellant did was not to object to the use of its name and bank account in the mailshot before paying the small sum over to SSCS [79]. According to Lord Kerr, it was plainly open to Hamblen J to find that the Appellant had no more than a minimal or peripheral input so that it played no effective part in the commission of the alleged tort. There was, therefore, no reason to interfere with this finding [87], [89]. Lord Sumption (dissenting) finds that the Appellant had a common intention with SSCS that SSCS should cut the nets of fishermen and forcibly release their catch if necessary [46 48]. The Appellants participation in relation to fundraising, though small, cannot be described as so trivial as to be no fact at all in the eyes of the law [50 51]. Lord Mance (dissenting) agrees with Lord Sumption that the fundraising assistance given by the Appellant to SSCS cannot be described as minimal [97]. The mailshot was sent out in the Appellants name and on its behalf, having explicitly or implicitly authorised this, and the sum raised was not insignificant [98 99].

The Investigatory Powers Tribunal (IPT) is a specialist tribunal established under the Regulation of Investigatory Powers Act 2000 (RIPA). It has jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. Section 67(8) of RIPA provides: Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court. On a preliminary issue in a claim brought by the appellant, the IPT ruled that section 5(2) of the Intelligence Services Act 1994 (the 1994 Act), which empowers the Secretary of State to issue a warrant authorising the taking of such action as is specified in the warrant in respect of any property so specified, extends to warrants authorising a class of activity in respect of a class of property so called thematic warrants. The appellants applied for judicial review, but the High Court ruled that section 67(8) of RIPA prohibits judicial review of that decision. The Court of Appeal dismissed the appellants appeal against that ruling. The two issues before the Supreme Court are: i) Whether section 67(8) of RIPA ousts the supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law. ii) Whether, and, if so, in accordance with what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction. The Supreme Court allows the appeal by a majority. Lord Carnwath gives the lead judgment, with which Lady Hale and Lord Kerr agree. Lord Lloyd Jones gives a separate concurring judgment. The majority allow the appeal on the first issue, as they conclude that section 67(8) does not oust the supervisory jurisdiction of the High Court for errors of law. Lord Sumption (with whom Lord Reed agrees) and Lord Wilson give dissenting judgments. (i) Whether section 67(8) of RIPA ousts the supervisory jurisdiction of the High Court Lord Carnwath holds that the interpretation of section 67(8) must be informed by the close parallel with the provision under review by the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 14. By the time the predecessor to RIPA was drafted in 1985, following Lord Diplocks explanation in OReilly v Mackman [1983] 2 AC 237, the drafter can have had no doubt that a determination vitiated by any error of law, jurisdictional or not, was to be treated as no determination at all. The reference to a determination was to be read as a reference only to a legally valid determination [105]. The exercise is not one of ordinary statutory interpretation, as there is a common law presumption against ousting the jurisdiction of the High Court. The plain words of the subsection must yield to the principle that such a clause will not protect a decision that is legally invalid. Therefore the exclusion in section 67(8) of RIPA applies only to determinations, awards or other decisions that are not erroneous in law [107]. The relevant decision in this case raised a short point of law, which on no ordinary view could be regarded as a decision as to whether [the IPT] had jurisdiction [108]. If read in the context of Anisminic, those words in parenthesis in section 67(8) apply only to a legally valid decision relating to jurisdiction [109]. This does not mean the words in parenthesis are otiose, as some decisions as to jurisdiction will involve issues of fact to which the exclusion could be said to apply without engaging the presumption against ouster [110]. Moreover, judicial review can only be excluded by the most clear and explicit words. A more explicit formula might have excluded challenges to any determination or purported determination [111]. The features of the IPT regime, on which the Court of Appeal relied, do not change the interpretation of section 67(8). As this case shows, the IPT can organise its procedures to ensure that a material point of law can be considered without threatening any security interests. Further, the potential for overlap with legal issues considered by ordinary courts makes it important that the IPT is not able to develop its own local law without scope for further review [112]. Lord Lloyd Jones agrees with Lord Carnwath. He adds that it is a necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament. Central to the appeal is whether it was the intention of Parliament to modify the procedures by which statute law is mediated [160]. He finds it a striking feature of section 67(8) and its predecessor that it failed to exclude purported determinations, awards and other decisions, in light of the judgment of Lord Diplock in OReilly v Mackman [164]. The words in parenthesis do not extend the exclusion of the jurisdiction of the High Court to what purport to be decisions but in law are not to be so regarded [165]. Lord Sumption, dissenting, concludes that the effect of section 67(8) is to exclude the jurisdiction of the High Court to entertain a challenge to the IPTs decisions on the merits. The rule of law is sufficiently vindicated by the judicial character of the IPT and it does not require a right of appeal from the decisions of a judicial body of this kind [172]. If the IPTs construction of section 5(2) of the 1994 Act was an error, then it was an error within the permitted field of interpretive power which Parliament has conferred on the IPT. Therefore, the effect of section 67(8) is that the High Court had no jurisdiction to entertain a challenge to the IPTs decision in the present case [206]. Lord Wilson, dissenting, concludes that the meaning of the words in parenthesis in section 67(8) encompass within the exclusion of judicial supervision all the decisions of the IPT in relation to its jurisdiction. He ascribes to that word the strained extension of its effect adopted in Anisminic, such that the exclusion in section 67(8) covers both ordinary errors of law as well as errors of jurisdiction in the proper sense of the word. The presumption that Parliament did not intend such an exclusion has to yield to the only reasonable meaning of its words [224]. (ii) Whether Parliament may by statute oust the supervisory jurisdiction of the High Court Lord Carnwath states that his conclusion on the first issue makes it strictly unnecessary to consider the second issue [113]. He nonetheless comments that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review [131]. This proposition is a natural application of the constitutional principle of the rule of law and an essential counterpart to the power of Parliament to make law. The question in any case is the level of scrutiny required by the rule of law [132]. Some forms of ouster clause may readily satisfy such a test, as in the six week time limit for planning cases [133]. Lord Carnwath sees a strong case for holding that binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. It should remain a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question [144]. Lord Sumption does not think it would be appropriate or wise to answer the second issue in wholly general terms. It should be addressed in the context of the statute in this case, and of the assumption that section 67(8) excludes judicial review of the IPTs decisions on merits [207]. He accepts that Parliaments intention that there should be legal limits to a tribunals jurisdiction is not consistent with the courts lacking the capacity to enforce those limits [210]. The question here, however, is how to reconcile the limited character of the IPTs jurisdiction with the language of section 67(8). The reconciliation is that section 67(8) does no more than exclude review by the High Court of the merits of decisions made by a tribunal performing the same functions as the High Court. It is in substance an exclusion of appeals on the merits and other proceedings tantamount to an appeal on the merits [211]. Lord Wilson recasts the second issue to address only Parliaments exclusion of judicial review of an ordinary error of law [237]. He concludes that Parliament has conferred both independence and authority upon the IPT and, in those circumstances, Parliament does have the power to exclude judicial review of any ordinary errors of law made by it [252 253].

Patrick Finucane was a solicitor in Belfast. On 12 February 1989, gunmen burst into his home and brutally murdered him in the presence of his wife and three children. Those responsible were so called loyalists. It has emerged that there was collusion between the murderers and members of the security forces. Despite various investigations into Mr Finucanes death, none of these has uncovered either the identity of the members of the security forces who engaged in the collusion or the precise nature of the assistance which they gave to the murderers. Following an inquiry into allegations of collusion between the security forces and loyalist paramilitaries, Brian Nelson was identified. Nelson was an informer for the security services and in particular for an organisation within the British army known as the Force Research Unit (FRU). His role had included the gathering of information about potential targets for assassination. In 2001, political talks were held between the UK and Irish governments. It was decided that a judge would be appointed to investigate allegations of collusion in a number of cases, including that of Mr Finucane. It was said that if the judge recommended a public inquiry in any case, the relevant government would implement that recommendation. Judge Cory was appointed in June 2002. Meanwhile, on 1 July 2003, following a case brought by Mrs Finucane, the European Court of Human Rights (ECtHR) decided that there had not been an inquiry into the death of Mr Finucane which complied with Article 2 of the European Convention on Human Rights (ECHR). Judge Cory published his report on 1 April 2004. He concluded that a public inquiry into Mr Finucanes murder was required. In September 2004, the Secretary of State for Northern Ireland (SSNI) wrote to Mrs Finucane and made a statement in the House of Commons to the effect that the inquiry would be held on the basis of new legislation which was to be introduced shortly. This new legislation was the Inquiries Act 2005. Mrs Finucane objected strenuously to the proposal that the inquiry would take place under the new legislation and various discussions as to the terms of the inquiry took place over the years that followed. In May 2010, there was a general election and a new government was formed. Following a consultation on the form which an inquiry into the murder of Mr Finucane should take, the decision was made on 11 July 2011 that a public inquiry would not be conducted. Instead, Sir Desmond de Silva was appointed to conduct an independent review into any state involvement in Mr Finucanes murder. Sir Desmond was given unrestricted access to documents and was free to meet anyone whom he felt could help with his inquiry. He was not given the power to hold oral hearings, however. Although, initially Sir Desmond wished to meet with one of Nelsons former handlers, this meeting did not take place and Sir Desmond explained in his report that the reason that the meeting did not take place was that he had been informed that the handler felt unable to attend for medical reasons. It has become apparent that this information was given to Sir Desmond by the Ministry of Defence. No medical evidence to support the claim of ill health was provided. In the event, Sir Desmond subsequently decided that he did not need to meet the handler, but did not explain why he had changed his view. Sir Desmond stated as part of the conclusion to his report: I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state. Mrs Finucanes case is brought in judicial review. She claims that she had a legitimate expectation that a public inquiry would be held because of the unequivocal assurance given to her in September 2004. She says the government have failed to show valid grounds for failing to fulfil this promise and that the evidence suggests that the decision not to hold the inquiry was a sham with a predetermined outcome. Mrs Finucane supports her case by arguing that the failure to establish a public inquiry constitutes a violation of her rights under Article 2 of the ECHR and section 6 of the Human Rights Act 1998 (HRA) which requires any public authority (including a Court) not to act in a way which is in contravention of an ECHR right. Mr Justice Stephens dismissed Mrs Finucanes application for judicial review but made a limited declaration that an Article 2 compliant inquiry into Mr Finucanes murder had not yet taken place. The Court of Appeal upheld this decision, save that it set aside the declaration. The Supreme Court holds that Mrs Finucane did have a legitimate expectation that there would be a public inquiry into Mr Finucanes death, but that Mrs Finucane has not shown that the governments decision not to fulfil this promise was made in bad faith or that it was not based on genuine policy grounds. The Supreme Court makes a declaration that there has not been an Article 2 compliant inquiry into the death of Mr Finucane. Lord Kerr gives a judgment with which all members of the Court agree. Lord Carnwath delivers a concurring judgment. Legitimate Expectation: Where a clear and unambiguous undertaking is made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so [62]. The undertakings given by the various ministers amount, individually and cumulatively, to an unequivocal undertaking to hold a public inquiry into Mr Finucanes death [68]. This promise was not of a substantive benefit to a limited class of individuals. Instead, it was a policy statement about procedure. That policy procedure applied not only to Mrs Finucane but also to the world at large [63]. If political issues overtake a promise given by the government and a decision is taken in good faith and on genuine policy grounds not to adhere to the original promise, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it [76]. Mrs Finucanes argument that the process was a sham and the outcome was fixed is a serious charge which would require clear evidence before this could be accepted [77 78]. There is no sustainable evidence to this effect, so this part of Mrs Finucanes appeal fails [81]. Whilst this issue did not arise on the facts of the present case, Lord Carnwath delivers a concurring judgment addressing the issue of detriment in substantive legitimate expectation cases [156 160]. Article 2 of the ECHR: Article 2 gives rise not merely to a duty not to kill people but, where there is an issue as to whether the state had broken this obligation, an obligation on the part of the state to carry out an effective official investigation into the deaths [83]. Mr Finucane died prior to 2 October 2000, which is the date when the HRA (which gives effect to the ECHR in domestic law) came into force [84]. The procedural obligation to investigate can be considered a detachable obligation, however. In that role, it is capable of binding the state even where the death took place before the critical date when these laws came into force [96]. The SSNI argued that there must be a genuine connection between the death and the critical date, and that this had not been established in this case [106 107]. It was suggested that the period between the death and the critical date should not exceed ten years. It was held that there was not an absolute rule that the period between the death and the critical date should be ten years or less. The period between the dates is important but the significance of this diminishes where, as in this case, most of the significant inquiries into the death took place after the HRA came into force [108]. It has been established by the ECtHR that any information or material which has the potential to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further would prompt a revival of the procedural obligation [117]. The need for an effective investigation goes well beyond facilitating a prosecution [127]. In order to be compliant, an investigation must be capable of leading to the identification and punishment of those responsible [128]. This must involve having the means to identify those implicated in the death [131]. Various features show that Sir Desmonds review fell short of being an effective Article 2 compliant inquiry: Sir Desmond did not have the power to compel the attendance of witnesses, those who met him were not subject to testing as to the accuracy of their evidence, and a potentially critical witness was excused attendance for questioning. The review by Sir Desmond, even when taken with earlier inquiries, was not sufficient to fulfil the requirements of Article 2 [134]. Mrs Finucanes representative had declined an invitation made by the Court of Appeal to amend her application and plead, as a freestanding issue, that the state was in breach of its Article 2 obligations. Notwithstanding this, the issue of whether there was a breach of the procedural obligation under Article 2 was before this Court and called for determination [151]. In any event, the confines of the deliberations of the Supreme Court are not necessarily determined by the manner in which the parties choose to make their presentations. Whilst it is unnecessary to decide this point in the present appeal, to allow a violation of an ECHR right to go unremarked upon may well be in breach of the spirit, if not the literal requirement, of section 6 of the HRA [152].

Under the Civil Partnership Act 2004 (CPA), only two people of the same sex may enter into a civil partnership. The Marriage (Same Sex couples) Act 2013 (MSSCA) made marriage of same sex couples lawful. The CPA was not repealed when the MSSCA was enacted. Consequently, same sex couples wishing to formalise their relationship have a choice as to whether to enter into a civil partnership or to marry. This choice is not available to different sex couples. The appellants are a different sex couple in a committed long term relationship, which they wish to formalise. They have genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They wish instead to enter into a civil partnership, which they consider would reflect their values and give due recognition to the equal nature of their relationship. They sought judicial review of the respondents continuing decision not to make changes to the CPA to allow different sex couples to enter into civil partnerships. The issue was whether the bar on different sex couples entering into civil partnerships breaches the appellants rights under article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life) of the European Convention on Human Rights (ECHR). The High Court and Court of Appeal dismissed their claim. It is now accepted by the respondent that there is an inequality of treatment between same sex and heterosexual couples, and that this inequality engages article 14 read in conjunction with article 8 of the ECHR. The respondent also accepts that the inequality therefore requires justification from the date it first began (ie. on the coming into force of the MSSCA). The principal issue before the Supreme Court was therefore whether justification of the inequality includes consideration of the period of time during which the respondent could investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination. The Supreme Court allows the appeal. Lord Kerr gives the judgment with which all the other Justices agree. When Parliament enacted the MSSCA, it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though it was recognised at the time that this would bring about an inequality of treatment between same sex partners and those of different sexes, and that this inequality would be based on the sexual orientation of the two groups. It was decided that further investigations were required, and the government concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same sex marriages had taken root [7]. Government consultations since the introduction of the MSSCA have failed to produce a consensus as to how, or if, the legal position relating to civil partnerships should change. The respondent concluded that it was proportionate to obtain more data in order to decide whether there was a need to preserve civil partnerships [9]. The court rejects the respondents argument that European Court of Human Rights (ECtHR) case law requires a wide margin of appreciation in relation to the timing of legislative change to recognise different forms of relationship, and that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur. Although a measure of latitude should be permitted to Parliament, the concept of a margin of appreciation as applied by the ECtHR has no application in domestic law a national court must confront the interference with an ECHR right and decide whether it is justified [27 28]. In as much as there is a margin of discretion analogous to that applied by the ECtHR, in cases of unequal treatment on grounds of sexual orientation, the margin is narrow [32]. It is reasonable that the legislature should be allowed time to reflect on what should be done when dealing with an inequality that it has come to recognise due to evolving societal attitudes. By contrast, to create a situation of inequality and then ask for time in this case several years to determine how that inequality is to be cured is less obviously deserving of a margin of discretion. [36] There is a well established four stage test to determine whether interference with a qualified ECHR right can be justified: (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? [41]. To be legitimate, the aim must be intrinsically linked to the discriminatory treatment. In this case, it is not. Tolerance of discrimination while the respondent determines how best to remedy it cannot be characterised as a legitimate aim [42]. The government had to eliminate the inequality of treatment immediately when the MSSCA came into force. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different sex couples. If the government had chosen one of these options, it might have been theoretically possible to then conduct research which could have influenced its longer term decision as to what to do with civil partnerships. Taking time to evaluate whether to abolish or extend could never, however, amount to a legitimate aim for the continuance of the discrimination as it is not connected to the justification for discrimination [50]. Even if the interference with the appellants rights in this case could be regarded as a legitimate aim, a fair balance between their rights and the interests of the community has not been struck. The interests of the community in denying civil partnerships to different sex couples who do not wish to marry are unspecified, whereas the consequences of this denial for such couples may be far reaching. A couple may, for example, suffer serious fiscal disadvantage if one of them dies before their relationship is formalised. There is no end point in sight for the present inequality of treatment [52]. The court has discretion as to whether to make a declaration of incompatibility and must decide whether it is appropriate to do so in a particular case. It should be noted that a declaration of incompatibility does not oblige the government or Parliament to do anything, and in this case, the court should not feel reticent about making such a declaration. The court therefore makes a declaration that sections 1 and 3 of the CPA, to the extent that they preclude a different sex couple from entering into a civil partnership, are incompatible with article 14 taken in conjunction with article 8 of the ECHR [54 62].

Mr Louca is a Cypriot national resident in the UK. His extradition is sought by the Office of the Public Prosecutor of Bielefeld, Germany, for six offences of tax evasion under a European Arrest Warrant (EAW) dated 14 July 2008. Two previous EAWs had been issued by the German Prosecutor, each resulting in the arrest of Mr Louca in April 2008, but were successively withdrawn because of minor technicalities. The current EAW refers to the domestic German arrest warrant but not to the previous, withdrawn, EAWs. Mr Louca argued that it was unlawful to extradite him under an EAW which did not refer to all the previous EAWs. The Supreme Court holds that, when a European Arrest Warrant is issued by the authorities of one Member State for execution in another, it must include a reference to the domestic warrant upon which the European Arrest Warrant is based, but need not include references to any other European Arrest Warrant which may have been issued on the basis of the domestic warrant. The appeal is therefore dismissed. (Paragraph [15]) Lord Mance gave the judgment of the Court, upholding the reasoning of the Divisional Court. The words any other warrant in section 2(4)(c) of the Extradition Act 2003 must be construed in the light of the European Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States of the European Union. (Paragraph [3]). The Framework Decision does not require any other warrant to include previous EAWs. The relevant part of the Decision article 8(1)(c) does not use the phrase European arrest warrant as it does elsewhere. The reference to an enforceable judgment, an arrest warrant or any other enforceable judicial decision (article 8(1)(c)) cannot sensibly be limited to an EAW. One EAW is most unlikely to be based upon another. (Paragraphs [9] [10]) There was no other reason to require the EAW to include information about prior EAWs upon which no reliance was being placed. Not doing so would not prevent Mr Louca arguing that extradition was an abuse of process, and other due process factors were comprehensively covered by the Extradition Act. (Paragraphs [13] [15]) Judgments

The Respondent operates an offshore installation in the North Sea. In April 2013, the installation was inspected by Her Majestys Inspectors of Health and Safety. The inspectors formed the view corrosion had rendered the stairways and stagings to the helideck (a helicopter landing platform) unsafe and served a prohibition notice on the Respondent under s.22 of the Health and Safety at Work Act 1974 (the 1974 Act). In May 2013, the Respondent appealed against the prohibition notice to an employment tribunal under s.24 of the 1974 Act. In July 2013, the Respondent arranged for the metalwork which had been of concern to the inspector to be removed from the installation and tested. The results of the testing showed that all the metalwork passed the British Standard strength test with the exception of a panel which had been damaged during the inspection and could not be tested reliably. There was no risk of personnel being injured by falling through it. The Respondent sought to rely upon the expert report as part of their appeal to the tribunal. The issue in the appeal is whether a tribunal is confined to the material which was, or could reasonably have been, known to the inspector at the time the notice was served or whether it can take into account additional evidence which has since become available. The Supreme Court unanimously dismisses the appeal. Lady Black gives the sole judgment with which the other Justices agree. On an appeal under s.24 of the 1974 Act, the tribunal is entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served. [24] It is vital for inspectors to be able to take prompt and effective action to ensure compliance with the provisions of the 1974 Act. A prohibition notice is a powerful tool in the inspectors hands. It not only allows an inspector to step in when he is of the opinion that a particular activity will involve a risk of serious personal injury, it also encourages employers to have good systems in place to improve public safety. [12] However, the service of a prohibition notice on a business has the potential to do financial and reputational harm to it. [13] The answer to the issue of what information the tribunal is entitled to take into account when forming its view of the facts at the material time is not clear from the wording of s.24 and must be considered in the light of the statutory scheme as a whole. [17] An appeal against an inspectors notice is not against the inspectors opinion but against the notice itself. The tribunal in the present case had to decide whether the stairways to the helideck were so weakened by corrosion as to give rise to a risk of serious personal injury. There is no good reason for confining the tribunals consideration to the material that was, or should have been, available to the inspector. The tribunal must be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was. If the evidence shows that there was no risk at the material time, then the notice will be modified or cancelled as the situation requires. [18] It is no criticism of the inspector when new material leads to a different conclusion about risk from the one he reached. His decision is often taken as a matter of urgency and without the luxury of comprehensive information. [19] The effectiveness of a notice is in no way reduced by an appeal process which enables the realities of the situation to be examined by a tribunal with the benefit of additional information. [20] This wider interpretation of s.24 does not undermine the role of prohibition and improvement notices in encouraging employers to have robust systems in place to demonstrate easily that no risk exists and therefore avoid the disruption of a prohibition notice which remains in force during the appeal process unless suspended by the tribunal. [21] The appellants arguments, that permitting the tribunal to look beyond the material available to the inspector will create delay and cost, do not change the conclusion on the wider interpretation of s.24. The appeal must be started within 21 days and will thereafter be under the control of the tribunal. [22] There are potent considerations in favour of the wider interpretation of s.24. The only means by which a notice can be cancelled under the statutory scheme is an appeal. However, if the appellants interpretation were correct a notice could not be dislodged even if the perceived risk of injury never in fact existed. In some cases, an employer might have to carry out unnecessary works. Further, even if, upon receipt of convincing evidence there was no risk the inspector would not seek to enforce the notice, the notice would still have the capacity to damage the reputation of the employer and his ability to do business. Furthermore, it cannot be right in those circumstances that an employer should be exposed to the possibility of criminal proceedings after his appeal is concluded. [23]

The appellant was a defendant in criminal proceedings in the Crown Court in Belfast. A legal aid certificate entitled him to public funding to instruct a solicitor and two counsel to appear on his behalf in those proceedings. During his first trial, he was represented by a barrister, Mark Barlow (described as leading junior counsel) and a solicitor advocate, Clive Neville. The jury were unable to reach a verdict and they were discharged. The appellant was tried again. He again wished to have Mr Barlow as lead counsel. In the meantime, however, Mr Barlow had been disciplined by the Bar Council of Northern Ireland (the respondent in these proceedings) on the basis that where a certificate had been granted for two counsel, unless there were exceptional circumstances meaning that a senior counsel was not available, he could not act as leading counsel. Mr Barlow therefore informed the appellant that he could not act as leading counsel. The appellant claimed that if Mr Barlow was not permitted to appear as his leading counsel, this would constitute a violation of his rights under article 6 of the European Convention on Human Rights (ECHR). The respondent Bar Council rejected this claim. The appellants re trial proceeded and he was acquitted on seven counts, with the jury failing to reach a verdict on the other four counts. The prosecution indicated that it does not propose that the appellant be tried again on the counts on which the jury failed to agree. The appellant applied for judicial review of the Bar Councils decision on the basis that it impeded his choice of lead counsel and therefore violated his right under article 6 ECHR. He asserted that his right to choose counsel was limited only by the interests of justice test within article 6.3 ECHR. The Divisional Court dismissed his application. The issue was whether, in cases where public funding for two counsel has been granted and where the accused wishes to retain a particular junior counsel, the requirement of the Bar Council that he must instruct an available senior counsel or proceed with junior counsel alone is not compatible with the accuseds right under article 6.3 to defend himself through legal assistance of his own choosing. The Supreme Court dismisses the appeal. Lord Kerr gives the judgment with which all the other Justices agree. Article 6 ECHR provides the right to a fair trial. The relevant provision is article 6.3(c), which states that every person charged with a criminal offence shall have the right to defend himself in person or through legal assistance of his own choosing. The appellant argued that this entitled him to choose which lawyers could defend him, unless the Bar Council could show that the refusal was justified [18 21]. The court examined the relevant case law of the European Court of Human Rights, which emphasises adequacy of representation over freedom of choice as to the identity of counsel. The fundamental basis of the right guaranteed by article 6.3(c) is that the legal representation should be conducive to a fair trial, rather than conferring complete freedom to an individual defendant to choose the lawyer by whom to be represented [28]. A defendant does not have the right to decide in what manner his defence should be assured the right is to be represented by sufficiently experienced counsel of ones choice, but the role to be played by that counsel cannot be dictated by the defendant [30]. In the present case, the appellant has not advanced any grounds why Mr Barlow should be designated as leading counsel so that his rights of defence would be assured. As the respondent has pointed out, Mr Barlow could continue to act for Mr Maguire but as junior counsel, either with senior counsel, or, if senior counsel was not available, alone. Mr Maguire was not deprived of the services of Mr Barlow by operation of the Bar Council code of conduct. The deprivation, if there was one, was the denial of an enhanced payment to Mr Barlow acting as leading counsel [32]. The exercise involved here is one of the courts deciding what the interests of justice require, not whether an interference with an individuals Article 6 right has been justified. Of course, the wishes of a defendant may be pertinent to the question of where the interests of justice lie but that is not because they have an intrinsic value [36]. It is clear from the relevant authorities that the essence of the right to choose ones counsel lies in the contribution that the exercise of that right makes to the achievement of the ultimate goal of a fair trial. It is not an autonomous right which falls to be considered outside that context [38]. Article 6 does not give a defendant the right to demand that he have counsel of his choice at public expense, independently of the requirements of the interests of justice. So far from impinging on the appellants rights under article 6.3(c), the relevant provision in the Bars code of conduct is designed to uphold and vindicate them [44].

The central issue in these appeals is whether at common law an employee can recover damages for loss arising from the unfair manner of his dismissal in breach of an express term of an employment contract. Each of Mr Edwardss and Mr Bothams employment contracts contained express terms governing the procedure for dismissal in cases of misconduct and each were summarily dismissed from their employment as, respectively, consultant orthopaedic surgeon and youth community worker [3], [15]. In Mr Edwards case, disciplinary proceedings were instituted against him in December 2005. He was alleged to have undertaken an inappropriate internal examination of a female patient and then denied that the examination had taken place [4]. In February 2006, a disciplinary hearing was held and the panel decided that he should be summarily dismissed for gross personal and professional misconduct [5]. By a claim issued in the High Court in August 2008, Mr Edwards claimed damages for breach of his employment contract and its wrongful termination. Among other procedural breaches, he alleged that the disciplinary panel had not been constituted in line with the applicable policy, which formed a term of his contract. His case was that, if the panel had included a clinician of the same discipline as him, his contract would not have been terminated. His preliminary schedule of loss alleged that he lost earnings (past and future) of over 3.8 million [9]. Mr Botham was suspended from work in December 2002 and was charged with gross misconduct for behaving inappropriately in relation to two teenage girls. Following disciplinary proceedings, in September 2003 he was summarily dismissed for gross misconduct. Because his misconduct was in relation to young people, he was placed on the list of persons deemed unsuitable to work with children under the Protection of Children Act 1999 (the POCA list) [14]. Mr Botham brought proceedings in respect of his dismissal in the employment tribunal. In May 2007, it held he had been unfairly dismissed and his summary dismissal was a breach of contract. In relation to the unfair dismissal, it found that the Ministry of Defence (MoD) had breached express terms of his contract set out in the Discipline Code found in the MoDs Personnel Manual [15]. The tribunal awarded him 7,000 loss of salary and benefits for his notice period, a basic award of 1,989 and a compensatory award of 53,500. His name was removed from the POCA list [16]. Mr Botham then issued proceedings in the High Court seeking damages for breach of the express terms of his contract. Relying on the findings of the tribunal, he alleged that the MoD, in conducting the disciplinary process, failed to comply with provisions of the Disciplinary Code, by reason of which he suffered a loss of reputation, was put on the POCA list and prevented from obtaining further employment in his chosen field. The Supreme Court by a majority allows the appeal. Employees may not recover damages for loss suffered as a result of a breach of a term in their employment contract as to the manner of their dismissal unless the loss can be said to precede and be independent of the dismissal. Compensation for the manner of dismissal is limited to what they may recover pursuant to the Employment Rights Act 1996 (the 1996 Act). Lord Dyson gives the leading judgment with which Lord Mance (adding further comments) and Lord Walker agree. Lord Phillips agrees that the appeals should be allowed, but for different reasons. Lady Hale and Lords Kerr and Wilson dissent. In Johnson v Unisys Ltd [2001] UKHL 13, the House of Lords held that loss arising from the unfair manner of dismissal is not recoverable as damages for breach of the implied term of trust and confidence in employment contracts: it falls within what has been called the Johnson exclusion area [1]. By the time of the report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (the Donovan report) it was settled law that an employee was not entitled to recover damages in respect of the manner of his dismissal. The Donovan report recommended that the law should be changed and that statute should establish machinery to safeguard against unfair dismissal [21]. Parliament gave effect to this recommendation in the Industrial Relations Act 1971. The relevant provisions are now contained in the 1996 Act. But Parliament placed significant limitations on the ability of an employee to complain of unfair dismissal, such as the three month time limit for bringing a claim, and on the remedies available: there is a cap on the level of the compensatory award (now 68,400). Therefore, Parliament decided to give a remedy which was less generous than that which the common law would give for breach of contract in the ordinary way [19] [23]. In each legislative modification to the unfair dismissal scheme, Parliament linked failure to comply with disciplinary procedures with the outcome of unfair dismissal proceedings; the provisions about disciplinary procedure were intended to operate within the scope of the law of unfair (not wrongful) dismissal [30] [37]. It follows that, if provisions about disciplinary procedures are incorporated as express terms of an employment contract, they are not ordinary contractual terms. Parliament intended such provisions to apply to employment contracts to protect employees from unfair dismissal. It has specified the consequences of a failure to comply in unfair dismissal proceedings. It could not have intended that they would also give rise to a common law claim for damages. Unless the parties express otherwise, they are taken not to intend that a failure to comply with contractual disciplinary procedures will give rise to a common law claim for damages [37] [39],[94]. This is regardless of whether the term is express or implied. A dismissal may be unfair for a variety of reasons and any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal, not that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament [40]. However, other remedies, such as injunction, which do not cut across the statutory scheme, are not excluded [44]. Whether individual cases fall within the Johnson exclusion area is a matter of fact and depends on whether the procedural breach forms part of the dismissal process: [51]. Mr Edwards dismissal flowed from the panels erroneous findings, which flowed from its improper constitution. Likewise, Mr Botham alleges that the loss of reputation was caused by the dismissal itself. Both cases therefore fall within the Johnson exclusion area [55] [59], [99].

On 5 July 2000 the appellant suffered a serious hypoxic brain injury during a school swimming lesson at Gloucester Park swimming pool in Basildon, Essex. At the time she was aged ten and a pupil at Whitmore Junior School, for which the respondent education authority was responsible. The swimming lesson took place in normal school hours as required by the national curriculum. The appellant was assigned to a group being taught by a swimming teacher, Ms Burlinson, and a lifeguard, Ms Maxwell, was also in attendance. It is alleged on the appellants behalf that both negligently failed to notice that she had got into difficulties in the water, causing her to suffer the injury. Neither was employed by the respondent. Their services had been provided to the respondent pursuant to a contract with Beryl Stopford (trading as Direct Swimming Services) to provide the lessons. The appellant issued proceedings for negligence against a number of parties, including the respondent. Her case against the respondent included an allegation that it owed her a non delegable duty of care, with the result that it was liable for any negligence on the part of Ms Burlinson or Ms Maxwell. The respondent denied that it owed such a duty and applied to strike out this allegation against it. The allegation was struck out in the High Court and this decision was upheld in the Court of Appeal. The Supreme Court unanimously allows the appeal against the order striking out the allegation of a non delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence. Lord Sumption gives the main judgment. Lady Hale gives a supporting judgment. Lord Clarke, Lord Wilson and Lord Toulson agree with both judgments. The question before the court was the scope of the respondents duty to pupils in its care: was it a duty to take reasonable care in the performance of the functions entrusted to it only if it performed those functions itself, through its own employees; or was it to procure that reasonable care was taken in their performance by whomever it might get to perform them a non delegable duty [4]? Non delegable duties of care are inconsistent with the fault based principles on which the law of negligence is based and are therefore exceptional [22]. English law has recognised that non delegable duties can arise in cases with the following characteristics: (1) the claimant is a patient or child or for some other reason is especially vulnerable or dependant on the protection of the defendant against the risk of injury; (2) there is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm in the performance of those obligations and not just a duty to refrain from conduct which will foreseeably damage the claimant; (3) the claimant has no control over how the defendant chooses to perform those obligations; (4) the defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising the defendants custody or care of the claimant and the element of the control that goes with it; and (5) the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him [23]. It is fair, just and reasonable to impose such duties. It is consistent with the long standing policy of the law to protect those who are inherently vulnerable and subject to a significant degree of control. It is wholly reasonable that a school should be answerable for the performance of part of its own educational function. Parents are required by law to entrust their child to a school and have no knowledge or influence over the arrangements that the school may make to delegate specialised functions, or the competence of the delegates. It is not an open ended liability and will only cover functions which the school has assumed for itself a duty to perform rather than to arrange for its performance, and only where control over the child has been delegated. The recognition of this duty has become more significant as a result of increased outsourcing of educational and supervisory functions but only replaces duties which the school formerly owed when the functions were performed by its staff [25]. On the facts of this case, as pleaded by the appellant, the respondent had delegated the control of the appellant to third parties to carry out an integral part of its teaching function during school hours, in a place where the school chose to carry out this part of its functions. If it is found that the third parties were negligent then the respondent will be in breach of duty [26]. Lady Hale, agreeing with Lord Sumption, suggests that this development of the law avoids the unsatisfactory possibility that one pupil could sue her school for injuries sustained during a negligently conducted swimming lesson where another could not, depending on the precise arrangements made by the school to provide them with swimming lessons. The boundaries of what a school may have undertaken to provide might not always be as clear cut as in this case but would have to be worked out on a future case by case basis [38].

The Respondent, Mr Gary Smith, is a plumbing and heating engineer. Between August 2005 and April 2011 Mr Smith worked for the First Appellant Pimlico Plumbers Ltd a substantial plumbing business in London which is owned by the Second Appellant, Mr Charlie Mullins. Mr Smith had worked for the company under two written agreements (the second of which replaced the first in 2009). These agreements were drafted in quite confusing terms. In August 2011 Mr Smith issued proceedings against the Appellants before the employment tribunal alleging that he had been unfairly dismissed, that an unlawful deduction had been made from his wages, that he had not been paid for a period of statutory annual leave and that he had been discriminated against by virtue of his disability. The employment tribunal decided that Mr Smith had not been an employee under a contract of employment, and therefore that he was not entitled to complain of unfair dismissal (a finding that Mr Smith does not now challenge), but that Mr Smith (i) was a worker within the meaning of s.230(3) of the Employment Rights Act 1996, (ii) was a worker within the meaning of regulation 2(1) of the Working Time Regulations 1998, and (iii) had been in employment for the purposes of s.83(2) of the Equality Act 2010. These findings meant that Mr Smith could legitimately proceed with his latter three complaints and directions were made for their substantive consideration at a later date. The Appellants appealed this decision to an appeal tribunal and then to the Court of Appeal, but were unsuccessful. They consequently appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Wilson gives the judgment with which Lady Hale, Lord Hughes, Lady Black and Lord Lloyd Jones agree. The tribunal was entitled to conclude that Mr Smith qualified as a worker under s.230(3)(b) of the Employment Rights Act 1996 (and by analogy the relevant provisions of the Working Time Regulations 1998 and the Equality Act 2010), and his substantive claims can proceed to be heard. Conceptually, it is both legitimate and convenient to treat the three positive findings of the tribunal as having been founded upon a conclusion that Mr Smith was a worker within the meaning of s.230(3)(b) of the Employment Rights Act 1996 (otherwise known as a limb (b) worker) [15]. This was because regulation 2(1) of the Working Time Regulations defines worker in identical terms to s.230(3)(b), and case law has suggested that the meaning of employment in s.83(2) of the Equality Act is also essentially the same [12 15]. Proceeding on that basis, if Mr Smith was to qualify as a limb (b) worker under s.230(3)(b) then it was necessary for him to have undertaken to personally perform his work or services for Pimlico Plumbers, and that the company be neither his client nor his customer. When considering whether Mr Smith had undertaken to provide a personal service, it was relevant that when working for Pimlico Mr Smith had a limited facility (not found in his written contracts) to appoint another Pimlico operative to do a job he had previously quoted for but no longer wished to undertake [24 5]. However, it is helpful to assess the significance of this right to substitute by considering whether the dominant feature of the contract remained personal performance on his part. In this case the terms of the contract (which referred to your skills etc.) are clearly directed to performance by Mr Smith personally, and any right to substitute was significantly limited by the fact that the substitute had to come from the ranks of those bound to Pimlico in similar terms. Consequently, the tribunal was entitled to hold that the dominant feature of Mr Smiths contract with the company was an obligation of personal performance [32 34]. On the issue of whether Pimlico Plumbers was a client or customer of Mr Smith, the tribunal had legitimately found that there was an umbrella contract between the parties, i.e. one which cast obligations on Mr Smith even when he was between assignments for Pimlico. It was therefore not necessary to consider what impact a finding that there was no umbrella contract (and therefore that the contractual obligations subsisted only during the actual assignments) would have had on the limb (b) analysis [37, 41]. Instead, one had to look at the wording of the written contractual documents to determine whether Pimlico was a client or customer of Mr Smith. On the one hand, Mr Smith was free to reject a particular offer of work, and was free to accept outside work if no work was offered by any of Pimlicos clients. He also bore some of the financial risk of the work, and the manner in which he undertook it was not supervised by Pimlico. However, there were also features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. These included Pimlicos tight control over Mr Smiths attire and the administrative aspects of any job, the severe terms as to when and how much it was obliged to pay him, and the suite of covenants restricting his working activities following termination [47 48]. Accordingly, the tribunal was entitled to conclude that Pimlico cannot be regarded as a client or customer of Mr Smith [49].