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The Appellant, Mr OBrien, is a retired self employed barrister who also worked on a daily fee paid basis as a part time judge of the Crown Court between 1978 and 2005. At the material time domestic law entitled salaried judges (including part time judges) to a pension based on their final years salary and number of years service, but made no pension provision for fee paid part time judges. Although employers were prevented from treating part time workers less favourably than full time workers under Council Directive 97/81/EC (the directive), the Regulations which gave effect to the directive (the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) which came into force on 1 July 2000) expressly did not apply to fee paid part time judges. Mr OBrien brought proceedings against the Ministry of Justice claiming an entitlement to a judicial pension. The case reached the Supreme Court, which referred to the Court of Justice of the European Union (CJEU) the question of whether it was permissible for national law to draw a distinction between salaried and daily fee paid judges for the purposes of pension provision. The CJEU held that it was not permissible, and the Supreme Court found that Mr OBrien was therefore entitled under the directive and national law to a pension on terms equivalent to a comparable full time judge. The Supreme Court then remitted the case to the Employment Tribunal to determine the amount of the pension to which Mr OBrien was entitled. There the question arose whether, in calculating the amount of his pension, account should be taken of the whole of his service since the beginning of his appointment in 1978 (a period of 27 years), or only his service since 7 April 2000, the deadline for transposing the directive (a period of less than five years). The Employment Tribunal held that the calculation should take into account the whole of his service, but the Employment Appeal Tribunal held the contrary. The Court of Appeal upheld the decision of the Employment Appeal Tribunal. Mr OBrien now appeals to the Supreme Court. The Supreme Court unanimously decides to refer a question to the CJEU. The terms of the reference are set out by Lord Reed. The Supreme Court is not persuaded that the case of either appellant or respondent is clearly right and is therefore under a duty to refer the questions in issue to the CJEU. As a matter of EU law when a new rule of law comes into force, it cannot apply to legal situations which have arisen and become definitive prior to that date, but can apply to the future effects of a situation which arose under the old law (European Commission v Moravia Gas Storage AS (Case C 596/13 P). This principle was applied in Istituto Nazionale della Previdenza Sociale (INPS) v Bruno (Joined Cases C 395/08 and C 396/08), where it was held that periods of employment completed before the directive came into force should be taken into account in calculating whether an employees length of service qualified for a pension. The entitlement to a pension (or lack thereof) based on periods of employment under the old law was not a situation which arose and became definitive at the time of the employment, but was a future effect of that employment. Mr OBrien argues that under this line of reasoning, periods of employment before the directive entered into force are to be taken into account when applying the directive in situations which arise after it should have been transposed, not only in relation to qualification for a retirement pension (which the Ministry does not dispute), but also in relation to the quantification of that pension, where its quantification is based on the employees length of service. However, the CJEU has also treated occupational pensions as a deferred form of pay, the entitlement to which accrues continuously over the employees service (Ten Oever v Stichting Bedrijfspensionenfonds voor her Glazenwassers en Schoonmaakbedrijf (Case C 109/91). In Ten Oever the Court referred to its judgment in Barber v Guardian Royal Exchange Assurance Group judgment (Case C 262/88) on the requirement for equal treatment of men and women in occupational pensions (pursuant to a different EU law provision), and held that such equal treatment could be claimed only in relation to benefits in respect of periods of employment subsequent to the date of the Barber judgment. The Ministry argued that following Ten Oever an occupational pension constitutes deferred pay for past work, and the workers entitlement to that pension accrues and is fixed at the time of the work for which it constitutes pay; the entitlement is not determined when the person retires and the pension becomes payable. The EU law principle of non retroactivity therefore prevents the right which accrued (or did not accrue) at the time of service from being affected retrospectively by a change in the law. On that basis, it is argued that Mr OBriens non entitlement to a pension in respect of his first 22 years of service was definitively established before the directive entered into force. In the context of these two approaches, the Supreme Court is inclined to think that the effect of the directive is that it is unlawful to discriminate against part time workers when a retirement pension falls due for payment. The directive applies where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directives entry into force, the directive applies to the future effects of that situation. However, the CJEU has not yet considered the argument that if, following the Ten Oever line of authority, an occupational pension is treated as deferred pay, the right to which is acquired at the time of the work to which the pay relates, then it follows from the general principle of non retroactivity that the directive does not alter or affect rights acquired (or, in Mr OBriens case, not acquired) before it was brought into force, there being no provision in the directive which overrides that general principle. Although the majority of the court are inclined to think that Ten Oever was concerned with the exceptional Barber limitation, which does not arise in the present context, the correct approach does not appear to the Supreme Court to be sufficiently clear. The following question is therefore referred to the CJEU: Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part time worker, if they would be taken into account when calculating the pension of a comparable full time worker?

The issue in this appeal is whether the National Health Service or local authorities (with means tested contributions from clients) are responsible for paying for the work done by registered nurses in social rather than health care settings. Section 49 of the Health and Social Care Act 2001 provides that a local authority is not required to fund nursing care by a registered nurse, defined in subsection (2) as services involving (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care, other than any services which having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. The owner of a care home providing nursing services to residents is obliged by regulation to ensure that a registered nurse is working at the care home at all times. This appeal concerns the funding of nursing care for residents who require some nursing care but for whom healthcare is not a primary need. Local Health Boards in Wales (the Boards) decided to pay a flat weekly rate, following a survey which asked nurses to record and categorise the time they spent of different tasks: direct and indirect nursing care time, non nursing care time and other time (which included stand by time, paid breaks and time receiving supervision). The weekly rate excluded payment for time in the last two categories on the basis that these services fell within the exception in s 49(2). The decision of the Boards to interpret s 49(2) in this way was challenged by eleven owners and operators of care homes in Wales, and all (save one) of the Welsh local authorities were joined as interested parties. The High Court quashed the decision, holding that the Boards should fund all the services in fact provided by a registered nurse. The Boards conceded that they should have covered nurses stand by time but appealed the finding in respect of services which need not have been performed by a registered nurse. The Court of Appeal by a majority allowed the Boards appeal. The local authorities appealed to the Supreme Court. The Supreme Court unanimously allows the local authorities appeal. It holds that the Boards have misinterpreted s 49(2) and that their decision must be quashed and re taken in the light of the guidance given in the judgment. Lady Hale gives the only substantive judgment. The background to the introduction of section 49 was the anomaly that nursing care was either provided free by the NHS or bought in by the local authority or residents depending on where it was provided. It was intended to shift the boundary further in the direction of NHS funding, but the words at the end of s 49(2) could not be ignored [26]. If Parliament had wanted to restrict the definition of nursing care by a registered nurse to tasks which could only be performed by a registered nurse then it could and would have said so [36]. Equally, if it had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it also could and would have said this [37]. Instead s 49 began with the broad concept of any services provided by a registered nurse and then limited those services in two ways. The first was to services which involve the care of residents ie looking after them, including personal and social care. The second was to exclude services which having regard to their nature and the circumstances in which they are provided do not need to be provided by a registered nurse. This latter category envisages that there will also be circumstances in which some personal or non nursing care will need to be provided by a registered nurse, care which is associated with or ancillary to the nursing care she is providing [38]. The provision of an overall, holistic, person centred plan for each resident who needs some nursing care requires the nurse to engage in social and personal tasks as part of that care. Some caring tasks cannot sensibly be parcelled up between nursing and non nursing care. It is a matter of fact, and one for the decision makers, what part of the care provided by registered nurses will fall within this definition [39 41]. Time spent on paid breaks and on receiving supervision is, however, a necessary part of providing the services registered nurses are there to provide [42]. Accordingly, the correct interpretation of s 49 is that nursing care by a registered nurse covers (a) time spent directly or indirectly on nursing care, in the sense of care which can only be provided by a registered nurse; (b) paid breaks; (c) time receiving supervision; (d) stand by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide [44]. The Boards decision was therefore based on a misinterpretation of s 49(2) and must be quashed and retaken in the light of this guidance, ideally after negotiation with all the parties governed by the legislation and with an interest in the outcome [46].

On 18 January 2005, at about 2.20 am, a tragic incident occurred on the A282, a six lane carriageway which links the Dartford Crossing bridge and tunnel with the M25 motorway. Mr Jones was driving a Highways Agency gritter along the nearside carriageway. Slightly ahead of him, in the central lane of the carriageway, was an articulated lorry driven by Mr Brian Nash. Ahead of him there was a car which was parked on the hard shoulder of the carriageway. As Mr Nashs lorry approached it a man ran from near the car into the middle of the central lane, turned towards the lorry, stood in its path and raised his arms. Mr Nash braked, but he was unable to avoid hitting the man, who was killed instantly. As a result of the braking the rear nearside corner of the articulated lorry swerved into the path of the gritter vehicle. There was a collision between the two vehicles, as a result of which the cab of the gritter was destroyed and Mr Jones was thrown from it onto the roadway. He suffered very severe injuries and now requires full time care. The man who ran onto the carriageway was Mr Barry Hughes. The inquest into his death returned an open verdict. But the obvious inference from his actions was that his intention was to kill himself [1, 2]. Acting by his mother Mrs Maureen Caldwell, Mr Jones applied to the Criminal Injuries Compensation Authority (the CICA) for an award of compensation under the Criminal Injuries Compensation Scheme 2001 (the Scheme). The CICA rejected the application essentially on the basis that in terms of the Scheme Mr Jones was not a victim of a crime of violence [3]. Mr Jones appealed to the First tier Tribunal (the FTT), arguing that Mr Hughes had committed two criminal offences, one of which is no longer relevant in this appeal. The FTT dismissed his appeal in relation to the other offence of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 (section 20). It did so because it was not satisfied that Mr Hughes intended to cause harm, or was reckless as to whether harm of whatever degree might be caused by his actions, when he ran out into the carriageway. Mr Jones unsuccessfully sought judicial review of that decision in the Upper Tribunal (Administrative Appeals Chamber) but successfully appealed to the Court of Appeal. The matter was remitted to a differently constituted FTT to reconsider the issue of recklessness in the light of the reasons given in the judgment of the Court of Appeal [4 6]. The parties agreed that the appeal raised the following issues for determination by the Supreme Court: (1) whether an applicant who satisfies the CICA on the balance of probabilities that he has sustained injury directly attributable to an offence under section 20 is necessarily a victim of a crime of violence for the purposes of the Scheme; and (2) if the answer to (1) is no, whether a person who satisfies the CICA on the balance of probabilities that he has sustained injury directly attributable to an offence under section 20 in circumstances such as those in the present case is a victim of a crime of violence for the purposes of the Scheme. The Supreme Court unanimously allows the appeal and restores the decision of the FTT. While every sympathy must be felt for the victim, Mrs Caldwell and their family, the terms of the Scheme do not permit an award of compensation to be made in this case [28]. The lead judgment is given by Lord Hope with whom all the other justices agree. Lord Carnwaths judgment contains observations about procedural aspects of the case among other matters. Built into the phrase a crime of violence there are two questions that the tribunal must consider. The first is whether, having regard to the facts which have been proved, a criminal offence has been committed. That question is for the tribunal, having informed itself as to what the law requires for proof of that offence, to determine as a matter of fact. The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence. This may also raise an issue of fact for the tribunal to determine, depending on what the law requires for proof of the offence. The range of acts that fall within the broad definition may vary quite widely, so the question whether there was a crime of violence will have to be determined by looking at the nature of what was done. But in this case the words of the statute speak for themselves. To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person will be the consequence of his act, is a crime in terms of section 20. It is also a violent act. So too is the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffer injury. The crime that section 20 defines will always amount to a crime of violence for the purposes of the Scheme [16 18]. Fairly read, the reason why Mr Jones appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes [20]. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. In particular, the FTT was not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused by his actions [24, 26]. The judgment of the Court of Appeal taken overall fails to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law [26]. It appears to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes actions amounted to a crime of violence. It was also unduly critical of the FTTs reasoning [25]. There are signs too that it allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal [26]. It is a curious feature of this appeal that the issues which both sides say are for the court to consider assume that the FTT held that a section 20 offence had been committed. The question whether a section 20 offence is necessarily a crime of violence admits of only one answer. But the FTT never got to the stage of asking itself that question because of its finding, on the facts, that a section 20 offence had not been committed [27]. Where, as here, the interpretation and application of a specialised statutory scheme has been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First tier level. It is primarily for the tribunals, not the appellate courts, to develop a consistent approach to issues such as the two questions built into the phrase a crime of violence, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the First tier level and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals [16, 41, 47].

The respondent, Mr Hayward, suffered an injury at work in June 1998. Mr Hayward brought proceedings and the employer admitted liability, but he deliberately and dishonestly exaggerated the extent of the injury in order to achieve a higher settlement figure of 134,973.11 from the appellant, the employers liability insurer. At the time of the settlement in October 2003, the insurer had video evidence of the exaggeration. But by February 2009, the insurer had gathered further evidence showing that Mr Hayward had fully recovered a full year before the settlement. It sought to set aside the settlement and claimed damages for deceit. Mr Hayward applied for summary judgment on the basis that the claim had already been compromised in the previous proceedings. His application for summary judgment or strike out was successful before the County Court, but overturned by the Court of Appeal. The insurers claim was therefore allowed to proceed. On the claim itself, the judge found that Mr Hayward had deliberately exaggerated the effects of his injury, set aside the settlement agreement, and awarded Mr Hayward a much reduced sum of 14,720. A second Court of Appeal allowed Mr Haywards appeal, holding that the insurer could not be allowed to set aside the settlement agreement since it was aware of Mr Haywards fraud at that time. The Supreme Court unanimously allows the insurers appeal, restoring the judges conclusion that the settlement agreement should be set aside and that Mr Hayward be paid the reduced sum. Lord Clarke gives the lead judgment. Lord Toulson gives a concurring judgment. The other Justices agree with both judgments. The critical issue on appeal is whether, in order to show the requisite influence by or reliance on the misrepresentation in a claim to set aside a compromise on the basis of fraudulent misrepresentation, the defrauded representee (i.e. the insurer in this case) must prove that it settled because it believed that the misrepresentations were true. The answer is no. There is no authority supporting a freestanding requirement of belief that the misrepresentations are true. The representees state of mind is instead relevant to, but not necessarily decisive of, the courts consideration of inducement into the settlement agreement, and causation [18, 23, 25]. There may be factual circumstances in which a representee knows that a representation is false but nevertheless relies on it, but this is not such a case. The insurer in this case did not know that Mr Hayward was deliberately exaggerating his injuries to such an extent as later became clear, and did everything that it could to investigate. Qualified belief in a misrepresentation does not rule out the conclusion that the insurer was induced by it [20 22, 40]. Lord Toulson, concurring, adds that the issue in this case is whether a suspicious insurer, who nevertheless settles the claim on the basis that it is likely to succeed but then later discovers a fraud, can set aside that settlement and recover damages for deceit [52]. It must be shown that the false representation caused the insurer to act to its detriment, but such inducement is always a question of fact going to the issue of causation. Mr Haywards misrepresentation induced the insurer to enter into the settlement agreement in this case [70]. It is not necessary to decide whether knowledge of the falsity of a representation would always prevent a representee from nevertheless proving that he was induced by it [40 48].

Local authorities owe a variety of duties towards children in need, who may include unaccompanied minors coming here to seek asylum. Such children may be entitled to accommodation and other help which is different from, and rather better than, the services available to adults. So disputes may arise about whether a young person is or is not a child. Today, the Supreme Court unanimously decided that it is ultimately for the courts, and not the local authority, to resolve this question. The Court considered two individual cases, but there are many others raising the same issue. A and M both arrived alone in England and claimed asylum, stating that they were under eighteen. Each was referred to local authority social workers who assessed him as an adult. Each challenged the resulting decision of the local authority that he was not entitled to accommodation. Two main issues were before the Supreme Court: (1) Whether the duty on local authorities to provide accommodation and related services under the Children Act 1989 is owed only to a person who appears to the local authority to be a child (so that the decision is ultimately for the authority to make), or whether it is owed to a person who is in fact a child (so that the decision is ultimately for a court to make); (2) Whether the decision to provide accommodation is the determination of their civil rights, so that the decision making process has to comply with the requirements for a fair trial before an independent and impartial tribunal under Article 6 of the European Convention on Human Rights. The Court unanimously allowed these appeals. The lead judgment of the Supreme Court was given by Lady Hale. The other members of the Court (Lord Hope, Lord Scott, Lord Walker, and Lord Neuberger) agreed with her. On the first main issue, Lady Hale explained that the many references to a child throughout the 1989 Act must mean the same thing, that is, a person who is in fact a child. There was a right or a wrong answer to this question, difficult though it might be to decide it in some cases. It was a different type of question from whether the child was in need within the meaning of the Act, which involved a number of different value judgements suitable for expert assessment by social workers (paragraphs [26] [27]). She pointed out, however, that local authorities (or the UK borders agency in asylum cases) will still have to decide whether or not a person is a child in the first instance; it will only be if this remains disputed that the court may have to take the decision itself (paragraph [33]). On the second main issue, Lady Hale said that it was unnecessary, in light of her conclusion on the first issue, to reach any firm conclusions on the application of Article 6 of the Convention (paragraph [34]). She declined to decide whether a childs entitlement to accommodation under the 1989 Act was a civil right, but commented that she would be most reluctant to hold that Article 6 required the judicialisation of claims to welfare services of this kind (paragraphs [44] [45]). Lords Scott, Walker and Neuberger agreed with her approach (paragraphs [66] [68). While agreeing that it was unnecessary to reach any firm conclusions on the point (paragraph [50]), Lord Hope doubted whether the duty of local authorities to provide accommodation under the 1989 Act gave rise to a civil right within the meaning of Article 6 of the Convention (paragraphs [55] [65]).

The immediate issue in this case is whether the trial at which the Appellant was convicted of murder was fair. The point of law of broader significance is whether it is compatible with Article 6 of the European Convention on Human Rights for an appeal against a criminal conviction on the ground of the Crowns non disclosure of evidence to the defence to be determined by applying the test laid down by the High Court of Justiciary in Cameron v HMA 1991 JC 252 for fresh evidence appeals. Arlene Fraser disappeared from her home in New Elgin on 28 April 1998. Her body has never been found. The Appellant stood trial for her murder in January 2003. He was convicted and sentenced to life imprisonment. The Crowns case was that the Appellant had arranged for his wife to be killed. Part of the evidence against him was that his wifes rings had been discovered in the bathroom of her house on 7 May 1998 after he had visited the house. There was unchallenged evidence that they had not been in the bathroom when the deceased had disappeared. At the trial, the Crown placed considerable emphasis on the return of the rings. In his speech to the jury, the prosecutor (the Advocate Depute) described the return of the rings as the cornerstone of the case against the Appellant. He suggested to the jury that the Appellant had removed the rings from the dead body and placed them in the bathroom to make it look as though his wife had decided to walk away from her life. The trial judge directed the jury that, if they were not prepared to hold that it was the Appellant who placed the rings in the bathroom on 7 May, it was not open to them to convict him. After conviction, it came to light that the Crown had had evidence before the trial suggesting that the rings were in the house on the night of 28/29 April after all. In preparing for the trial, a statement had been taken from PC Lynch on 3 July 2002 in which he had said that he had visited the house that night, before the official police search, and had seen rings in the bathroom. He said that he had been accompanied by WPC Clark. After this information came to light, the Crown carried out further inquiries. Statements were taken in 2006 from PC Lynch and WPC Clark. Both said that they had seen jewellery (including rings) in the bathroom on the night of Arlene Frasers disappearance. The rings were not visible in a video which had been taken during the official search, but subsequent analysis of that video could not rule out the possibility that rings had been present. The Appellant relied upon this information in his appeal against conviction. He argued that it was new evidence which showed that his conviction was a miscarriage of justice. He also sought to raise a devolution issue, arguing that the Crowns failure to disclosure the information obtained from PC Lynch on 3 July 2002 had infringed his right to a fair trial under Article 6 ECHR. The Appeal Court refused to allow him to advance the devolution issue: among other reasons, it held that the points were already covered by the fresh evidence grounds of appeal. The Appeal Court refused the Appellants appeal. It treated the grounds of appeal relating to the Crowns non disclosure in the same way as those relating to new evidence and held that the new evidence was not such as to make the conviction a miscarriage of justice. The Supreme Court granted the Appellant leave to appeal to the Supreme Court. The Supreme Court unanimously allows the appeal. It remits the case to a differently constituted Appeal Court to consider whether to grant authority for a new prosecution and then, having considered that point, to quash the conviction. Lord Hope gives the main judgment, with which Lords Rodger, Kerr and Dyson agree. Lord Brown gives a separate judgment indicating his reservations about allowing the appeal, but does not dissent. The Supreme Court recognises that it has no jurisdiction to consider the test which applies in Scots law to fresh evidence appeals which do not involve a devolution issue. This case, however, involves an issue of non disclosure, which raises the question whether the trial complied with Article 6 ECHR and which is a devolution issue. By refusing the Appellants devolution minute, the Appeal Court did determine a devolution issue and the Supreme Court has jurisdiction to hear an appeal against that determination: [11], [12], [17]. The test which is to be applied to determine whether non disclosure of information by the Crown had resulted in an unfair trial, contrary to Article 6 ECHR, is now set down in the Supreme Courts decision in McInnes v HM Advocate ([2010] UKSC 7). It can be analysed as comprising threshold and consequences components. If the material might have materially weakened the Crown case or might have materially strengthened the case for the defence, it ought to have been disclosed by the Crown. When assessing the consequences of non disclosure, McInnes provides that the trial was unfair and the verdict a miscarriage of justice if there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence: [12] [14]. Because it dealt with all of the grounds of appeal as a fresh evidence appeal, the Appeal Court applied the test set down in Cameron v HMA 1991 JC 252. In order to determine whether that approach complies with what McInnes requires in a non disclosure case, the Cameron test and the Appeal Courts application of it must be compared against the McInnes test: [15] [16]. The Cameron test is materially different from the McInnes test: [25], [29]. If fresh evidence is admissible on appeal, the threshold element of the Cameron test asks whether the evidence would have had a material bearing upon the jurys determination of a critical issue at trial. That is more stringent than the threshold test in McInnes ([25]), which was clearly satisfied in this case: had the evidence of PC Lynch and WPC Clark been led at the trial the prosecution would not have committed itself to the theory of the case which it presented and the conduct of the trial by both parties would have been quite different: [32]. In relation to the consequences of the evidence not featuring at the trial, the Cameron test asks whether there has been a miscarriage of justice, which it does not define: [26] [27]. In this case, the Appeal Court considered that question on the assumption that, had the undisclosed material been available at the trial, it would have been conducted differently. As a first stage of its analysis, it left out of account the Advocate Deputes speech to the jury and the judges direction and considered the evidence led at the trial. It considered that the jury had been entitled to convict on the basis of that evidence and concluded that the new evidence was not of such significance as to require the verdict to be set aside: [36]. That approach cannot be reconciled with the McInnes test, which requires an appeal court to concentrate on the case as presented at trial, rather than as it might have been presented. An appeal court is not to deal with the case as if it were a new jury trying the case for the first time. There was a real possibility, in light of the undisclosed evidence, that the jury at this trial would have arrived at a different verdict: if the evidence of PC Lynch and WPC Clark were accepted, the Crowns theory of the case would have been untenable: [37] [39]. Lord Brown agreed that the Appeal Court applied the wrong test. He would have been inclined to remit the whole matter to that court for reconsideration, leaving it to that court to apply the McInnes test. In view of the majoritys decision, he did not carry his doubts to the point of dissent: [51] [52]

The appellant local authority (the Council) has responsibility for the enforcement of food safety laws in its area. In June 2011 inspectors visited the premises of the respondent company, which carries on the business of buying, processing and selling meat products. The inspectors found a number of packages of frozen meat labelled with use by dates which had passed. The respondent was tried on 23 charges of selling food after the date shown in the use by date relating to it contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 (the Regulations) made under the Food Safety Act 1990. The charges were dismissed by Gwent Justices on 1 September 2011. They accepted a submission by the respondent that it had no case to answer because the prosecution had not proved that at the date of the alleged offence the food required a use by label under the Regulations, ie that it was highly perishable and likely after a short period to constitute an immediate danger to human health. There was no evidence as to when the meat had been labelled or frozen. The Council appealed by way of case stated. The Divisional Court allowed the appeal, holding that the prosecution did have to show that the food had at some stage been in a state which required it to be labelled with a use by date, which had passed, but not that it was in that state at the time of the offence. The Council brought a further appeal to the Supreme Court, submitting that the prosecution had only to show that the respondent was selling food which was the subject of a use by label displaying a date which had passed. The Supreme Court unanimously allows the appeal. It holds that under Regulation 44(1)(d) it is sufficient for the prosecution to prove that a defendant had food in its possession for the purpose of sale which was the subject of a label showing a use by date which had passed. The case will be remitted to a different panel of justices for a rehearing in accordance with this ruling. The judgment is given by Lord Toulson. The Divisional Court was right to reject the respondents argument that the prosecution had to prove that the food was in a highly perishable state at the time of the alleged offences under Regulation 44 (1)(d). On the wording of that paragraph, all the prosecution had to prove was that (i) the food was in the respondents possession for sale (and therefore sold within the extended meaning of that term), (ii) that the food had a use by mark or label relating to it, and (iii) that the date shown had passed [21]. To read into paragraph (d) an additional requirement that the food was in a highly perishable state at the time of the alleged offence would seriously weaken the regulatory scheme and the protection provided to consumers. It would enable a retailer of perishable food, which had passed its use by date to freeze it and then sell it without the consumer knowing how long it had been unfrozen [22]. The words relating to in the phrase sells any food after the date shown in a use by date relating to it were synonymous with referring to. It denoted a factual connection rather than a legal requirement and simply meant that the food sold was the subject of a label with a use by date [24]. Comparison with other paragraphs of Regulation 44 (1) showed that, unlike the offence in paragraph (a), there was a reason for the omission of the words marked or labelled in accordance with Part II of these Regulations. Once food had been marked with a use by date the Regulations protected the consumer by prohibiting the removal or alteration of the marking except with the written authority of the original marker and by prohibiting the sale of the food after the use by date shown [25 27]. The Divisional Courts construction of the Regulations would give rise to significantly greater practical problems and expense for enforcement under paragraph (d) compared with (a). Questions relating to when the marking of the food had been done and the state of the food at the time would be matters unknown to the inspectors and realistically might deter prosecutions [28].

This case concerns the scope for justifying indirect discrimination against men in the allocation of Child Tax Credit (CTC). CTC was introduced by the Tax Credits Act 2002 and replaced the previous separate systems of tax credits and benefit supplements for people looking after children, separately administered by the tax and benefits authorities. CTC is a benefit payable in respect of each child irrespective of whether the applicant is employed. It is administered solely by HMRC. The amount of CTC payable depends on the income of the applicant. Under the Child Tax Credit Regulations 2002 (SI 2002/2007), CTC in respect of each child is payable to only one person, even where the care of the child is shared between two or more persons. Entitlement to CTC depends on who is deemed responsible for the child. Regulation 3(1) creates a set of rules for determining this. Rule 1 provides that where the child lives with one person, that person is treated as responsible. Rule 2 provides that where a child lives with two or more persons in different households, the person having main responsibility for the child is treated as being responsible. The Appellant is a father of two children. Between January 2004 and December 2005 both children lived with their mother but retained substantial contact with the Appellant, spending most weekends and half of all school holidays with him. The Appellant applied for CTC which was considered under Rule 2, above. The Respondent determined that the mother had main responsibility for the children and the Appellants application was rejected. The CTC was paid solely to the mother. The Appellant appealed the refusal of CTC arguing that the legislative scheme breached article 14 read with article 1 of the First Protocol to the European Convention on Human Rights (the ECHR) in that it indirectly discriminates against men because, on the whole, fathers are more likely than mothers to have secondary, but nonetheless significant, responsibility for the care of their children. Entitlement to CTC falls within the scope of the right to protection of property under article 1 of the First Protocol to the ECHR. Article 14 of the ECHR provides that the enjoyment of rights and freedoms under the ECHR shall be secured without discrimination on grounds of, amongst others, sex. The HMRC now accepts that the legislative scheme indirectly discriminates against men. The key issue was whether that discrimination was objectively justified. The appeal tribunal held that it was not and therefore that denying CTC to the father was a breach of article 14 of the ECHR read with article 1 of the First Protocol. The Upper Tribunal held that the discrimination was justified and that decision was upheld by the Court of Appeal. The Supreme Court unanimously dismisses the appeal. Lady Hale gives the lead judgment with which Lord Walker, Lord Clarke, Lord Wilson and Lord Reed agree. The Appellant relied upon the Court of Appeal decision in Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749, [2005] EuLR 385 in which it was held that the denial of child supplements to a fathers jobseekers allowance where he and the mother shared roughly equal care of the children was unjustified indirect discrimination [12]. The case was brought under European Union anti discrimination law rather than the ECHR. Following that decision HMRC conducted a review of the no splitting rule in CTC, the results of which helped persuade both the Upper Tribunal and the Court of Appeal that there were features of the instant case distinguishing it from Hockenjos. The specific test under the ECHR for justifying discrimination in the context of state benefits is set out in Stec v United Kingdom (2006) 43 EHRR 1017, a decision of the Grand Chamber of the European Court of Human Rights [15]. The benefits in that case were for people who were required to stop work because of injury. Entitlement reduced upon reaching retirement age which had a discriminatory effect on women who reached that age five years before men. The Court repeated that A difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (para 51). However, when it comes to general measures of economic and social strategy, a wide margin of appreciation is allowed to member states. The Court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation [16]. Hence this particular measure was justified. The test in Stec has been applied in other direct discrimination cases. If it applies to direct discrimination cases, then it must also apply to indirect discrimination cases such as this. In the context of state benefits, under the ECHR the normally strict test for justification of sex discrimination gives way to the manifestly without reasonable foundation test [19]. This does not mean however that the justifications put forward will escape careful scrutiny by the courts [22]. The Appellants main complaint is that the scheme leaves him with nothing to provide for the needs of his children when they stay with him [23]. Although the mother could choose to share the CTC, neither HMRC nor the courts can compel her to do so. Against this, HMRC points out that the aim of the scheme is to reduce child poverty. It is paid to the main carer on the expectation that that person incurs most of the expenditure in looking after the child [25]. Splitting the CTC between two carers of modest means could result in neither of them being able to provide for the childs needs [25]. Furthermore, splitting CTC on the basis of means would introduce administrative complexities and increase costs [25]. Finally, the Appellant is asking for an exception to be made to an otherwise justifiable rule. It has been previously established that generally justifiable rules are not unreasonable or without foundation merely because they result in hardship in some cases [26]. The scheme in this case is geared towards reducing child poverty. The current definitions of child poverty rely upon household income, which means that targets will be easier to meet if support is given to single households rather than split [28]. However, the state is entitled to conclude that children will in fact be better off if CTC is distributed in this way rather than divided between two households with modest means [29]. That method is also simpler and less expensive to administer, thereby maximising the funds available for distribution [29]. It was an integral part of the move to combine tax allowances and social security benefits into a seamless tax credit system [30]. It is also reasonable for the state to regard the way in which it delivers support for children and families as a separate issue from the way in which children spend their time [31]. It is perhaps unfortunate that the courts making orders about where children are to live no longer have the power to make consequential orders about benefit sharing, where appropriate [32]. However, the no splitting rule is a reasonable rule for the state to adopt and the indirect discrimination in this case is justified [33].

National Savings and Investments (NS&I) is a non ministerial Government department offering retail savings and investments to UK customers. It also provides support functions to other public bodies, referred to as business to business services or B2B services [2]. NS&I has outsourced its own operational services. In 2013 it entered into a contract with Atos IT Services Limited (Atos) to purchase support services including transaction management, printing, accounting, IT and customer services [3]. The award of the Atos contract followed a competitive tender process which complied with EU law on public procurement, as implemented in domestic law by the Public Contract Regulations 2006 (the 2006 Regulations). It was envisaged in the tender documents and in the Atos contract that it could be extended to support new B2B services provided by NS&I [13]. The Government announced it would replace tax relief for employers who contribute to their employees child care costs with a new scheme of tax free childcare (TFC). The TFC scheme involves parents setting up childcare accounts into which HMRC contributes a 20% top up, capped at 2,000 per year [16]. On 29 July 2014 HM Treasury decided that NS&I would deliver the new TFC policy for HMRC by providing and administering the childcare accounts and supporting services [21]. The arrangements between HMRC and NS&I were to be set out in a memorandum of understanding. NS&I proposed to modify its contract with Atos to include services related to TFC [23], without any government body undertaking a public procurement process in relation to this work. The appellants are Edenred (UK Group) Limited, a company which provided services to employers under the old tax relief scheme, and the Childcare Voucher Providers Association [1]. They considered that EU procurement law required a new tender process [6]. They commenced proceedings seeking declarations that the proposed TFC arrangements were unlawful under the 2006 Regulations and an order restraining the modification of the Atos contract. On 27 October 2014 they were granted an interim order preventing the implementation of TFC [25]. An expedited trial took place before Andrews J in November 2014. She dismissed the claim, holding that the proposed variation of the Atos contract would not breach EU procurement law [26]. The appellants appealed to the Court of Appeal, but their appeal was dismissed on 31 March 2015 [26]. The Supreme Court heard the appellants application for permission to appeal at the same time as their substantive appeal, in order to provide a prompt determination [5]. The Supreme Court grants the appellants permission to appeal but unanimously dismisses their appeal. The interim order preventing the implementation of TFC is set aside [50]. Lord Hodge, with whom Lord Neuberger, Lord Mance, Lord Sumption, Lord Carnwath agree, gives the judgment. The principal purpose of EU procurement law is to develop effective competition in the field of public contracts. Public contracts over a threshold value must be advertised and awarded according to fair and transparent procedures to ensure equality of treatment between potential service providers [28]. Amendments to an existing public contract will fall within the procurement regime and be treated in substance as the award of a new contract if they involve a material variation of the contract [29]. The 2006 Regulations were replaced by the Public Contracts Regulations 2015 (implementing Directive 2014/24/EU) which came into force on 26 February 2015. The 2015 Regulations will govern the amendment of the Atos contract if the respondents proceed with that amendment [6], and represent an updated statement of EU procurement law [30]. Therefore, the judgment refers to reg.72 of the 2015 Regulations which sets out the circumstances in which a contracting authority may modify a public contract without a new procurement process [31]. A fresh procurement is not required where the modifications to the contract are not substantial (reg.72(1)(e)). The appellants argued that the proposed amendments to the Atos contract were substantial because they extended the scope of the contract considerably (reg.72(8)(d)), encompassing services not initially covered [33]. This argument did not succeed. The original contract covered operational services to support both NS&Is existing functions and (as an object of the contract) the expansion of B2B services [34]. The prohibition on modification to encompass services not initially covered does not preclude expansion that is envisaged and advertised in the initial procurement process. The question is whether the services were covered by the original contract, including its provisions for contractual variation. Otherwise, outsourced services would not be able to accommodate the events and policy changes that are part of public life [36]. Although contracts may not be designed to avoid EU law obligations, the expansion provided for in this case was within a reasonable compass. It did not alter the essential nature of the operational services provided and included restrictions to maintain the economic balance of the contract and Atos profit margin [37]. A new tendering process may also be dispensed with if the proposed contractual variation has been provided for in the initial procurement documents in clear, precise and unequivocal review clauses (reg.72(1)(a)). Lord Hodge inclines to the view that this criterion is also satisfied [43] but comments that the nature of the review clauses covered by the regulation is open to debate [44]; such debate was not necessary to resolve in order to determine the appeal [45]. The appellants argued alternatively that there was in substance a public service contract between HMRC and Atos [46], on the basis that provisions in the memorandum of understanding between HMRC and NS&I were legally binding and were repeated in the proposed modification to the Atos contract, and that HMRC was the service recipient of B2B services provided by, and discussed with, Atos [47]. However, NS&I is an existing public body with an established remit apart from the TFC scheme, using outsourced resources to provide B2B services to other public bodies. There is no legal basis for airbrushing it out of the picture. The memorandum of understanding and the Atos contract are legally distinct. It is NS&I, not HMRC, that can enforce the Atos contract. The appellants contention that NS&I would be under a statutory legal obligation to comply with the memorandum of understanding (which is not in itself an enforceable contract) by virtue of s.16 of the Childcare Payments Act 2014 misinterpreted the effect of that section. Any public body receiving B2B services from NS&I may discuss those services with the outsourced provider, but that does not alter the substance of the transaction [48].

The issue in this appeal is the scope of the remedy of judicial review in the Court of Session of decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). Ms Ebas claim for disability living allowance was refused by the Department of Work and Pensions on 1 February 2008. Her appeal against this decision to the First Tier Social Entitlement Chamber was dismissed. She was refused permission to bring a further appeal to the Upper Tribunal by a judge of the Upper Tribunal. There was no right of appeal from that decision under the 2007 Act. Ms Eba therefore sought to bring proceedings for judicial review. Her claim for judicial review was dismissed by the Lord Ordinary (Lord Glennie) on 31 March 2010. The First Division of the Court of Session, however, allowed a reclaiming motion, holding that the decision of the Upper Tribunal was amenable to judicial review under the supervisory jurisdiction of the Court of Session and that the grounds on which it would be reviewed were not subject to any limitation on policy or discretionary grounds. The Advocate General for Scotland appealed to the Supreme Court. The appeal was heard with appeals in two English cases raising the same issue, R (Cart) v Upper Tribunal and MR (Pakistan) v Upper Tribunal. The Supreme Court unanimously dismisses the appeal and affirms the interlocutor of the Inner House of the Court of Session, although for different reasons. It holds that unappealable decisions of the Upper Tribunal are amenable to judicial review in cases which raise some important point of principle or practice or some other compelling reason to be heard. Ms Ebas case should be remitted by the Inner House to the Lord Ordinary to examine the question of whether she has sufficient grounds for her claim, applying this approach. Lord Hope gives the judgment of the court. The issue in the appeal lay at the heart of the relationship between the Court of Session and the new system for specialist tribunals created by the 2007 Act. On the one hand was the rule of law, which gave the Court of Session power to correct excesses or abuses of the power or jurisdiction conferred on a decision maker by the system of judicial review; on the other was the interest in achieving finality at the tribunal level in the delivery of administrative justice [8]. Although there are differences in judicial control of administrative actions in Scotland, there is in principle no difference between the law of England and Wales and Scots law as to the substantive grounds on which a decision by a tribunal which acts within its jurisdiction may be open to review [34]. The potential approaches in relation to unappealable decisions of the Upper Tribunal in England and Wales were examined in the judgments in the linked appeals in Cart and MR(Pakistan). The Supreme Court in those appeals has held that the adoption of the criteria for the grant of permission to bring second tier appeals provided by the 2007 Act would be a rational and proportionate restriction on the availability of judicial review while guarding against the risk that errors of law may slip through the system [37]. The outcome of those appeals, by overturning the restrictive approach of the Court of Appeal in Cart, has made it much easier for the Scots approach to find common ground with that now being taken in England and Wales. The issue is not one about access to the remedy, which will remain available to the citizen as of right, or the purpose for which the supervising jurisdiction may be exercised, but one of how best to tailor the scope of the remedy according to the nature and expertise of the Upper Tribunal and the subject matter of the decisions that have been entrusted to it by Parliament [44]. Two factors already established in Scots law support the conclusion that Scots law should now align itself with the position in English law. The first is that the court should be slow to interfere with decisions that lie within the expertise of the specialist tribunals. The second is the fact that the limitation on the scope for second appeals in the 2007 Act has been reproduced in the Rules of the Court of Session and it would be inconsistent with the intention behind that rule to provide a wider opportunity for the decisions of the Upper Tribunal to refuse permission to appeal to itself to be reconsidered by way of judicial review [47]. It will be for the Court of Session to give such further guidance as may be needed as to how this analogy with the second appeals criteria should be applied in practice, but ideally the Lord Ordinary should give consideration of whether the criteria are arguably met at the stage of the first order [49]. There is no good reason to take a different approach in the application of the common law principle of restraint in cases relating to other Scottish tribunals outside the 2007 Act, although it does not arise for decision in the present appeal [51].

The respondent is a member of the Volkswagen (VW) Group and is used (through its retail sector) to provide hire purchase (HP) finance for the sale of vehicles manufactured by the group. When a customer of a VW dealership wishes to purchase a vehicle using finance from the respondent, the vehicle is acquired by the respondent and supplied to the customer on deferred payment terms under an HP contract. In the course of its business the respondent incurs input tax as part of its expenditure. Where that expenditure is directly attributable to taxable supplies the input tax is deductible; where the supply is exempt the input tax is irrecoverable. This appeal concerns the treatment of general business overheads, not directly attributable to particular supplies: specifically, whether any of the residual input tax paid by the respondent in respect of general business overheads is deductible against the output tax paid on the taxable supply of vehicles to customers. In December 2007 the appellant agreed to a new, updated version of a partial exemption special method (PESM) with the respondent for determining the allowable proportion of residual input tax. It did not, however, agree to the respondents proposed methodology for retail (under which HP falls). The appellants approach is that overheads are all attributable to the exempt supplies of finance and the input tax is therefore irrecoverable. The respondent, meanwhile, argues that the residual input tax should be in proportion to the ratio of taxable transactions to the whole, which has the effect of splitting the residual input tax 50/50 for HP transactions. That issue was decided in favour of the respondent by the First Tier Tribunal (FTT) and Court of Appeal, while the Upper Tribunal (UT) had supported the approach of the appellant. A secondary issue between the parties is the appellants argument that it had a fall back position on the amount of the apportionment that the FTT had failed to consider. The UT considered an extract from the hearing notes of Judge Berner in the FTT as supporting the appellants claim that it had asked the FTT to consider in the alternative whether a lesser figure than 50% should have been attributed to the taxable supplies. The Court of Appeal, however, disagreed, holding that the appellant did not attempt to rely on an alternative methodology before the FTT. On the main issue in the appeal the Supreme Court makes a reference to the Court of Justice of the European Union (CJEU). On the second issue, the Court unanimously dismisses the ground of appeal. Lord Carnwath gives the judgment, with which the other Justices agree. On the primary issue in the appeal, the Court decides that a reference to the CJEU is necessary to reach a conclusion [3]. Its questions to the CJEU include: where general overhead costs attributed to hire purchase transactions (which consist of exempt supplies of finance and taxable supplies of cars), have been incorporated only into the price of the taxable persons exempt supplies of finance, does the taxable person have a right to deduct any of the input tax on those costs? Further, can it be legitimate in principle to ignore the value of the taxable supplies of cars (or their value) for the purposes of arriving at a special method under Article 173(2)(c) of Council Directive 2006/112/EC? Determination of the secondary issue does not require examination of general questions about the tribunals role. One of the strengths of the tribunal system is the flexibility of its procedures, which need to be adapted to a wide range of types of case and litigant. There may be some circumstances where a more inquisitorial approach is appropriate, but where the tribunal is dealing with substantial litigants represented by experienced counsel, it is entitled to assume that the parties will have identified what they regard as relevant issues for decision [7]. Particular importance is attached to the tribunals understanding of the issue before it, as apparent from the tribunals own introduction to the detailed discussion at paragraph 41 [8]. The Court has no material to go behind the clear statement of the position as the tribunal understood it, having itself apparently sought clarification. If the tribunal was thought to have misunderstood the appellants position and failed to deal with a significant issue, the matter could have been raised with them and sorted out at that point [9]. As the tribunals understanding is consistent with the lack of any specific reference to this issue in the appellants written submissions or in the evidence of its witness, this ground of appeal is dismissed.

In breach of Article 81 of the EC Treaty (TEC) (now Article 101 of Treaty on the Functioning of the European Union (TFEU)), the appellants participated in an illegal cartel in electrical and mechanical carbon and graphite products. The appellants disclosed the existence of the cartel to the European Commission and a Commission Decision finding that article 81(1) had been infringed by the members of the cartel was issued on 3 December 2003. The appellants, as whistle blowers, escaped any fine. The other cartel members received heavy fines. A number of the other cartel members appealed the Commission Decision to the General Court of the Court of Justice of the European Union. The General Court dismissed the appeals, and the time limit for pursuing any further appeal to the Court of Justice expired on 18 December 2008. On 15 December 2010, the respondents filed claims for damages with the Competition Appeal Tribunal for loss alleged to have resulted from the operation of the cartel. These claims are follow on claims brought under section 47A of the Competition Act 1998 (the 1998 Act). Follow on claims are based on a prior Commission decision that an infringement has occurred, which is treated as binding on the domestic Tribunal. Section 47A(8) of the 1998 Act provides that no follow on claim may be brought during the period up to the expiry of the time limit for pursuing any appeal against the relevant Commission decision or the determination of any such appeal if pursued. The relevant Tribunal rules state that the time limit for bringing any follow on claim is two years from the end of the period specified in section 47A(8). The issue before the Supreme Court is whether the respondents follow on claim against the appellant should be struck out for being brought more than two years after the end of the period for appealing the Commission Decision. This, in turn, depends on whether the Commission Decision is viewed: (i) as a decision made against the appellants, which they chose not to appeal; or (ii) as a decision made against all the cartel members, appealed by most of them, and finally upheld by the General Court. On the former approach the two year limitation period began on 13 February 2004 (when time expired for an appeal by the appellants) and expired before the follow on claims were brought on 15 December 2010. On the latter approach it began only on 18 December 2008 (when time expired for an appeal to the Court of Justice by those who had appealed to the General Court) and the follow on claims were brought in time. The Court of Appeal, overturning the decision of the Competition Appeal Tribunal, preferred the latter approach and held that the claim against the appellant could proceed. The Supreme Court unanimously allows the appeal. Lord Mance (with whom Lord Neuberger, Lord Sumption, Lord Toulson and Lord Hodge agree) gives the only judgment. The decision to which section 47A of the 1998 Act refers is the Commission Decision, the nature of which is a matter determined by European Law [16]. Decisions of the Court of Justice establish that a decision by the Commission regarding the existence of a cartel constitutes a series of decisions addressed to its individual addressees, which remain binding against an individual addressee who does not appeal even if there is a successful appeal by another addressee [1721]. The only relevant decision establishing infringement in relation to an addressee who does not appeal is the original Commission decision [22, 2425]. That decision, in relation to the appellant, is the Commission Decision made on 3 December 2003, in respect of which the time period to appeal expired on 13 February 2004 [28]. Therefore, the claim by the respondents was brought more than two years after the relevant decision and is out of time. The detailed rules governing the recovery of any loss resulting from the operation of an illegal cartel are matters of domestic law, so long as they comply with the general principles of European law. It is a general principle of European law that domestic courts cannot take decisions running counter to a Commission decision finding that a prohibited agreement or practice exists. This is reflected in section 47A of the 1998 Act, which contains important cross references to a decision by the Commission made under European law. To understand the nature of that decision, regard must necessarily be had to European law. [1011, 16] The relevant provisions of the treaties (Article 249 TEC and now article 288 TFEU) leave open whether a decision operates as a single decision against all addressees, or as a decision against each addressee separately. However, the European Court of Justice has determined this question in Case C 310/97 AssiDomn Kraft Products AB v Commission of the European Communities, holding that a decision which has not been challenged by the addressee within the time limit becomes definitive as against him, regardless of any appeal that may be brought by another addressee. The same principle was recently reiterated by the General Court in Case T 462/07 Galp Energa Espaa SA v Commission. [17 21] It follows that, even if the appeals by the other cartel members had succeeded, the Commission Decision would have remained in full force and effect against the appellants. That being the only decision against the appellants in European law, it is also the only decision to which section 47A of the 1998 Act can refer. [2225]

The Appellant, Ms Caroline Reilly, is the former head teacher of a primary school which was, at the relevant time, maintained by the Respondent, Sandwell MBC (the local authority). Approximately ten years before Ms Reilly became the head teacher of the school, she met a man named Ian Selwood, who became her close friend. They were not, however, in a sexual or romantic relationship. In 2003 they bought a property as an investment in their joint names and set up a joint bank account to pay the mortgage instalments. Mr Selwood lived in the property and Ms Reilly sometimes stayed there overnight. In January 2009 Ms Reilly applied for the position of head teacher at the school. On 25 February 2009, having just stayed overnight at their jointly owned property, she witnessed Mr Selwoods arrest by the police on suspicion of having downloaded indecent images of children. Ms Reilly was subsequently appointed to be head teacher and took up the position on 1 September 2009. Mr Selwood was convicted on 1 February 2010 of making indecent images of children by downloading them onto his computer. Although Ms Reilly became immediately aware of Mr Selwoods conviction, she decided not to disclose it to the governing body of the school. Her close friendship with Mr Selwood continued, and in April 2010 they went on holiday together. In June 2010 the local authority learnt of Mr Selwoods conviction, and of Ms Reillys friendship with him. It suspended Ms Reilly and subsequently summoned her to a disciplinary hearing in May 2011. At that hearing, the panel upheld the allegation that, by having failed to disclose her relationship with a man convicted of sexual offences towards children, Ms Reilly had committed a serious breach of an implied term of her contract of employment which amounted to gross misconduct. The panel were particularly concerned by Ms Reillys continuing refusal to accept that her relationship with Mr Selwood might pose a risk to pupils and the school, and that she should therefore have disclosed it to the governors. Ms Reilly was, as a result, summarily dismissed. Ms Reilly subsequently brought proceedings for unfair dismissal and sex discrimination in the Employment Tribunal, maintaining that she had been under no obligation to disclose the information. The Tribunal held that, save for an irrelevant procedural element, the decision to dismiss her had not been unfair. Her sex discrimination claim was also dismissed. Ms Reilly thereafter appealed to both the Employment Appeal Tribunal and the Court of Appeal on the unfair dismissal point, but was unsuccessful on both occasions. The Supreme Court unanimously dismisses the appeal. Lord Wilson gives the judgment with which Lord Carnwath, Lord Hughes and Lord Hodge agree. Lady Hale gives a concurring judgment. An inquiry into whether a dismissal is unfair is governed by s.98 of the Employment Rights Act 1996. In summary, this requires that the employer show (i) that there is a reason for the dismissal, (ii) that that reason relates to the employees conduct or is similarly justifiable, and (iii) that they acted reasonably in treating the reason as sufficient for the dismissal [16 18]. On this latter point, i.e. the reasonableness of the employers conduct, the courts have for many years employed the test set out in the case of British Home Stores Ltd v Burchell [1980] ICR 303 [19]. This has been considered, in effect, to require the tribunal to inquire whether the dismissal was within a range of reasonable responses to the reason shown for it, and whether it had been preceded by a reasonable amount of investigation [22]. In this case, Ms Reilly was under a contractual obligation to assist the governing body in discharging its duty to safeguard the pupils, and the question was whether her relationship with Mr Selwood engaged the governing bodys safeguarding functions [25 26]. Parliament has previously recognised (for example via the Childcare Act 2006 and the regulations made under it) that sexual offenders towards children can represent a danger to children not only directly but also indirectly by operating through those with whom the children associate. Mr Selwood was the subject of a serious, recent conviction and the basis of his sentence was that he represented a danger to children. As head teacher, Ms Reilly was likely to know important information about her pupils, including their whereabouts, their routine and their circumstances at home. She was also likely to be able to authorise visitors to enter the school premises. Mr Selwoods relationship with Ms Reilly therefore created a potential risk to the children at the school. This risk required the assessment of the governors [27 28]. In these circumstances, the employment tribunal was entitled to conclude that it was a reasonable response for the disciplinary panel to have concluded that Ms Reillys non disclosure of her relationship with Mr Selwood not only amounted to a breach of duty, but also merited her dismissal. Ms Reillys continuing refusal to accept that she had been in breach of her duty suggested a lack of insight which, it was reasonable to conclude, rendered it inappropriate for her to continue to run the school [29]. Lady Hales Concurring Judgment Lady Hale agrees, and for the reasons given by Lord Wilson, that Ms Reilly breached her contract of employment by not informing her employers of her connection with Mr Selwood. She also agrees that Ms Reillys continuing failure to acknowledge that this information should have been disclosed made the decision to dismiss her reasonable [31]. Notwithstanding this, Lady Hale wishes to note that this case might, if argued differently, have presented an opportunity for the Supreme Court to consider two points of law of general public importance which have not been raised at this level before. Namely, (1) whether a dismissal based on an employees conduct can ever be fair if that conduct is not in breach of the employees contract of employment [32], and (2) whether the approach laid down by the Employment Appeal Tribunal in British Homes Stores Ltd v Burchell is correct [33]. In the absence of any such argument, however, the law remains unchanged, and Lady Hale expresses no view as to whether that is correct [35].

This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Benefits Act 1992 (the 1992 Act) provides the only route to recovery. Section 71 allows the Secretary of State to recover any overpayment resulting from misrepresentation or the non disclosure of a material fact by the benefits claimant. The background to this appeal is the Secretary of States practice (adopted in about 2006) of writing to benefit claimants who he considered have been overpaid, but where there had been no misrepresentation or non disclosure, indicating that his Department had a common law right of action to recover the overpayment. Although no common law claim for repayment was ever in fact brought in the courts, the letters led to the recovery of substantial sums, for example, just over 4m in 2007 8. The Child Poverty Action Group brought this legal test case on behalf of social security claimants to challenge the Secretary of States practice on the basis that it is based on a false legal premise. One of the salient features of the history of the social security benefits legislation is the fact that prior to the Social Security Act 1998 (the 1998 Act) there was a division between the functions of adjudication which involved the quantification of the award and the payment of the award. Until the 1998 Act, the Secretary of State was responsible for the payment function only and therefore at the time of enactment of section 71 of the 1992 Act there was no possibility of mistake on the part of the Secretary of State in the calculation of the award, since he played no part in the calculation. The only possibility of mistake lay in the payment of the award. Since the 1998 Act the Secretary of State had been responsible both for the calculation and the payment of the awards. Both parties agreed that where the Secretary of State overpays by mistake, for instance by sending a cheque for 120 following an award of 60, the amount of the overpayment can be recovered as money paid by mistake. The overpayments with which this appeal is concerned are those made as a result of a mistake in calculating the award. The Supreme Court unanimously dismissed the appeal. Lord Brown and Sir John Dyson gave lead judgments; Lord Rodger gave a concurring judgment. It held that section 71 of the 1992 Act provides the only route to recovery of social security benefits overpayments to the exclusion of any common law rights. Both Lord Brown and Sir John Dyson agreed with the respondents argument that, rather than excluding any common law rights to recovery, section 71 and its predecessors created a power of recovery when otherwise, due to the division of adjudication and payment functions up until 1998, there would have been none: [13], [22]. Lord Brown noted that it would seem inconceivable that Parliament would have contemplated leaving the common law restitutionary recovery available to the Secretary of State alongside the carefully prescribed scheme of section 71. He found it striking that Parliament had not made express provisions for recovery of mistaken overpayments alongside provisions for misrepresentation and non disclosure. Lord Brown thus concluded that section 71 does necessarily exclude any common law restitutionary claim the Secretary of State might otherwise have: [14] [15]. Sir John Dyson dismissed the Secretary of States argument that section 71 cannot be taken to have excluded prospectively the possibility of a common law right to recovery arising in the future. In his view, the change in the identity of adjudicator of the social security benefits awards in 1998, which was not accompanied by any change in the statutory criteria for recovery of overpayments, was not intended to open the door to recovery any wider than it previously had been: [23] [25]. Whilst noting that the appeal could be dismissed on that basis alone, Sir John Dyson went on to consider whether, if, contrary to the finding of the Court, the common law right to recovery did exist by the time section 71 and its predecessors were introduced, that right was impliedly displaced by statute. Having discussed the authorities at [27] [30], Sir John Dyson concluded that the test is not one of necessary implication but instead that of statutory interpretation, namely, whether, looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended to co exist with it: [31], [34]. Sir John Dyson concluded that, for the reasons given by Lord Brown, he too agreed that section 71 was intended to be an exhaustive route to recovery of wrongly calculated benefits: [35]. Lord Rodger noted that section 9(3) of the 1998 Act, which provides that any revision of the award takes effect from the date of the original award, would have no practical effect in cases of downward revisions resulting from a mistake in favour of the Secretary of State. He concluded that while section 9(3) creates a problem, it does not solve it. Thus the question of whether a remedy should be available in cases of mistaken awards is a matter for Parliament: [39].

The appellant in this case challenged the rule that an expert witness enjoyed immunity from any form of civil action arising from the evidence he or she gave in the course of proceedings. The appellant had been hit by a car in March 2001 and suffered physical and psychiatric consequences. He consulted solicitors with a view to bringing a claim for personal injury, and they instructed the respondent, a clinical psychologist, to prepare a report on his psychiatric injuries for the purposes of the litigation. She reported that the appellant was suffering from post traumatic stress disorder (PTSD). Proceedings were issued and liability was admitted, so that the only remaining issue was the amount of damages. The appellant was examined by a consultant psychiatrist instructed by the defendant driver, who expressed the view that the appellant was exaggerating his symptoms. The district judge ordered the two experts to hold discussions and to prepare a joint statement to assist the court at the trial. It is the appellants case that the respondent carried out this task negligently, and thereby signed a joint statement which wrongly recorded that she agreed that the appellant had not suffered PTSD and that she had found the appellant to be deceitful in his reporting. This was so damaging to his claim for damages that he felt constrained to settle it for a significantly lower sum than he might otherwise have been able to achieve. The appellant accordingly issued proceedings for negligence against the respondent. She applied for the claim to be struck out. The judge in the High Court was bound by the Court of Appeals decision in Stanton v Callaghan [2000] QB 75 to hold that the respondent, as an expert witness, was entitled to immunity from such a claim in respect of her preparation of a joint statement for trial, and granted the application. The appellants appeal against this order came direct to the Supreme Court as a point of general public importance. The Supreme Court by a majority (Lord Hope and Lady Hale dissenting) allows the appeal. Lord Phillips gives the lead judgment. The majority hold that the immunity from suit for breach of duty (whether in contract or in negligence) that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. Witness immunity dates back over 400 years, long before the development of the modern law of negligence and the practice of forensic experts to offer services to litigants for reward [11]. It originally took the form of absolute privilege against defamation claims but was extended to all forms of suit [12]. It overlapped with the wider immunity formerly enjoyed by an advocate from negligence claims by his own client, before that immunity was abolished by the House of Lords in 2001 on the ground that it could no longer be justified [13]. The general rule was that every wrong should have a remedy and that any exception to this rule must be justified as being necessary in the public interest and kept under review [51][88][113]. The primary rationale for the immunity was a concern that an expert witness might be reluctant to give evidence contrary to his clients interest, in breach of his duty to the court, if there was a risk that this might lead his client to sue him [41]. In common with advocates, however, there was no conflict between the duty that the expert had to provide services to his client with reasonable skill and care, and the duty he owed to the court. The evidence did not suggest that the immunity was necessary to secure an adequate supply of expert witnesses [54] [117]. The removal of immunity for advocates had not diminished their readiness to perform their duty, nor had there been a proliferation of vexatious claims or multiplicity of actions [57 60][85]. For these reasons the majority concluded that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings [61]. This decision did not affect the continued enjoyment by expert witnesses of absolute privilege from claims in defamation [62], nor did it undermine the longstanding immunity of other witnesses in respect of litigation [125]. Lord Hope and Lady Hale, dissenting, disagreed with the majoritys approach of reviewing the justification for the immunity. The rule was longstanding and its application to claims beyond defamation in respect of evidence given by any witness was confirmed by the House of Lords in Watson v MEwen [1905] AC 480 [141]. The question therefore was whether an exception to this rule could be justified [161][176]. The main concern arising from the decision of the majority was the effect on disappointed litigants liable to commence worthless but time consuming claims against their experts [165][188]. The lack of a secure principled basis for removing the immunity, of a clear dividing line between what was to be affected by the removal and what was not, and of reliable evidence to indicate what the effects might be, suggested that the wiser course was to leave any reform, if needed, to Parliament [173][189].

These proceedings arise out of a fatal accident in Germany. On 21 May 2004 Major Cox, an officer serving with H.M. Forces in Germany, was riding his bicycle on the verge of a road near his base when a car left the road and hit him, causing injuries from which he died. The driver was Mr Kretschmer, a German national resident and domiciled in Germany. He was insured by the respondent, a German insurance company, under a contract governed by German law. The appellant, Major Coxs widow, was living with him in Germany at the time of the accident. After the accident, she returned to England where she has at all relevant times been domiciled. She has since entered into a new relationship and has had two children with her new partner. Liability is not in dispute, but there are a number of issues relating to damages. Their resolution depends on whether they are governed by German or English law, and, if by English law, whether by the provisions of the Fatal Accidents Act 1976 (the 1976 Act) or on some other basis. The question which law applies was ordered to be tried as a preliminary issue. There are two relevant respects in which an award under English Law, specifically the 1976 Act, may differ from an award under the relevant German Law, the BGB. First, damages awarded to a widow under the BGB will take account of any legal right to maintenance by virtue of a subsequent remarriage or a subsequent non marital relationship following the birth of a child. Section 3(3) of the 1976 Act expressly excludes remarriage or the prospect of remarriage as a relevant consideration in English law. Secondly, Section 844 of the BGB confers no right to a solatium for bereavement. Under section 823 of the BGB the widow may in principle be entitled to compensation for her own pain and suffering, but this would require proof of suffering going beyond normal grief and amounting to a psychological disturbance comparable to physical injury. English rules of private international law distinguish between questions of procedure, governed by the law of the forum i.e. in this case England, and questions of substance, governed by the local laws, in this case Germany. The issue in the present case is whether Mrs Cox is entitled to rely on the provisions of sections 3 and 4 of the 1976 Act. They provide for a measure of damages substantially more favourable to her than the corresponding provisions of German law, mainly because of the more favourable rule concerning the exclusion of her current partners payments of maintenance. This issue depends on whether the damages rules in sections 1A and 3 of the 1976 Act fall to be applied (i) on ordinary principles of private international law as procedural rules of the forum, or (ii) as rules applicable irrespective of the ordinary principles of private international law. The Court of Appeal held that English law should adopt the German damages rules as its own and apply them not directly but by analogy. The Supreme Court unanimously dismisses the appeal and finds that the German damages rules apply. Lord Sumption writes the leading judgment and Lord Mance writes a concurring judgment [37]. The Court finds that the relevant sections of the 1976 Act do not apply as they do not lay down general rules of English law, but only rules applicable to actions under the Act itself. An action to enforce a liability whose applicable substantive law is German law is not an action under section 1 of the 1976 Act to which the damages provisions of the Act can apply [20]. As the particular rules of assessment in the 1976 Act do not apply, then the answer must be sought in the rules of assessment which apply generally in English law in the absence of any statute displacing them. The relevant English law principle of assessment, which applies in the absence of any statute to the contrary, is that Mrs Cox must be put in the same financial position, neither better nor worse, as she would have been in if her husband had not been fatally injured. It follows that, in principle, credit must be given for maintenance from her subsequent partner during the period since the birth of their child [21]. A further issue concerns Mrs Coxs receipt of maintenance from her current partner during the period before they had a child, when he was under no legal obligation to maintain her either in German or in English law [22]. The findings at first instance about the relevant German law indicate that it is not just the maintenance that the appellant would have received from Major Cox that must have been received by virtue of a legal obligation, but also the maintenance from her current partner for which she can be required to give credit. Lord Sumption notes that the classification of a damages rule regulating the receipts for which credit must be given in an award of damages is a difficult question which admits of no universal answer but that, in the present case, the rule in question is one of substance, rather than procedure [22] (Lord Mance [39]). Lord Sumption rejects the argument that the 1976 Act should be applied notwithstanding the ordinary rules of private international law. As a matter of construction the Act does not have extraterritorial effect [32 34]. Nor do the principles enacted in the 1976 Act represent mandatory rules of English law, applicable irrespective of ordinary rules of private international law [35]. Lord Mance explains that it makes no difference to the outcome of the appeal whether or not the dependency claims under the 1976 Act and German law are categorised as broadly similar or whether the relevant provisions of the 1976 Act are treated as substantive or procedural [47]. Assuming that the dependency claims are categorised as broadly similar, the provisions of sections 3 and 4 of the 1976 Act are, if substantive, irrelevant to a tort subject to German substantive law. If on the other hand, the provisions of sections 3 and 4 were to be treated as procedural, their application could have no effect on the outcome. There is no basis on which an English procedural provision can expand a defendants liability under the substantive principles of the relevant governing law [48].